Robco Transportation, Inc. v. Ritter

356 N.W.2d 497, 1984 Iowa Sup. LEXIS 1246

• Court: Supreme Court of Iowa
• Decided: October 17, 1984
• Docket: 83-915
• Status: Published

Opinions

REYNOLDSON, Chief Justice.

The underlying controversy in this case concerns trial court’s jurisdiction over defendant Larry R. Ritter, in circumstances one would expect to find only in an imaginative law school examination. We cannot reach the merits, however, because this appeal was taken too late to vest jurisdiction in this court. Consequently, we dismiss the appeal.

The facts alleged in the petition and subsequent affidavits are not controlling here, thus merit only brief review. Plaintiff Robco Transportation, Inc. (Robco), is a Minnesota corporation engaged in interstate trucking. Robco’s principal place of business is in Iowa. It entered into a written contract in Iowa with defendant Ritter, a Wisconsin resident, to lease Ritter’s truck tractor and to have Ritter pull loads for Robco. Several other significant incidents of this transaction are alleged to have occurred in Iowa. Robco assigned a cargo of meat in Kansas to Ritter’s driver, to be delivered in Alabama. The driver abandoned the equipment and cargo in Oklahoma. By the time the cargo was found it had been damaged in the alleged amount of $30,000.

February 24, 1983, Robco filed suit in Polk County, Iowa, alleging the negligence of Ritter’s agent and seeking to recover $30,000 from Ritter for the damage done to its meat. March 1,1983, Ritter was served personally in Potosí, Wisconsin. March 21, Ritter filed a special appearance under Iowa Rule of Civil Procedure 66, seeking dismissal of the action on grounds the court did not have personal jurisdiction over him.¹ Ritter alleged none of the circumstances giving rise to the petition had any connection with the state of Iowa. Robco filed no resistance to Ritter’s special appearance.

April 8, the district court for Polk County, Judge Denato presiding, sustained Rit-ter’s special appearance. April 11, Robco’s district court attorney received a copy of the court’s ruling. He immediately telephoned Judge Denato and told him Robco had not resisted Ritter’s special appearance, because Robco had never received notice that Ritter had filed a special appearance. Judge Denato told Robeo’s counsel that he would be allowed to resist the special appearance. The latter then telephoned Rit-ter’s attorney to obtain a copy of the special appearance, which he received in the mail on April 13.

April 20, 1983, Robco filed a “Resistance to Special Appearance,” with supporting affidavits. Robco took no appeal from the district court’s ruling of April 8; nor did Robco file a motion to enlarge under Iowa Rule of Civil Procedure 179(b). Neither did it petition to vacate the judgment under rules 252 and 253.

April 25, 1983, the district court entered an order stating “[t]he Court’s ruling on special appearance ... will be reconsidered at hearing on 5/2/83.” June 21, the district court, Judge Denato presiding, entered a second ruling sustaining Ritter’s special appearance.

July 15, 1983, Robco filed notice of appeal, alleging the district court erred in sustaining Ritter’s special appearance. Though this notice fell within thirty days of the court’s second ruling, it was filed more than thirty days from the court’s first ruling. For that reason, prior to oral argument, we raised the question of our jurisdiction to entertain the appeal. The parties having now had the opportunity to brief this issue and address it upon oral submission, we hold this appeal was not timely and we have no jurisdiction to entertain it.

I. Iowa Rule of Appellate Procedure 5(a) relevantly provides:

[Ajppeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment or decree, unless a motion for new trial or judgment notwithstanding the verdict as provided in R.C.P. 247, or a motion as provided in R.C.P. 179(b), is filed, and then within thirty days after the entry of the ruling on such motion ....

A timely appeal is jurisdictional, and cannot be conferred by consent, much less the silence of the appellee. It is our duty to refuse, on our own motion, to entertain an appeal not authorized by rule. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978); see State v. Iowa Department of Social Services, 328 N.W.2d 912, 913 (Iowa 1983).

A trial court’s ruling sustaining a special appearance is a final order from which an appeal of right may be taken. Boye v. Mellerup, 229 N.W.2d 719, 720 (Iowa 1975); Saxton v. State, 206 N.W.2d 85, 86 (Iowa 1973). Before 1975, we ruled the sustention of a special appearance determined the cause except as to the right to appeal or to vacate the judgment. White v. Wilkes, 173 N.W.2d 98, 99 (Iowa 1969); Oldis v. John Deere Waterloo Tractor Works, 259 Iowa 1111, 1117, 147 N.W.2d 200, 203 (1966); Saxton, 206 N.W.2d at 86. We stated that once a special appearance was sustained, further trial court action (except for a petition to vacate) was “an exercise in futility.” White, 173 N.W.2d at 100.

In 1975, Iowa Rule of Civil Procedure 48 was amended. It now provides an action is commenced by filing a petition with the court. Consequently, it is no longer true that the sustention of a special appearance terminates the action except for the right to appeal or to vacate the judgment. Casey v. Connolly, 320 N.W.2d 631, 631 (Iowa 1982). Even though the trial court’s sustention of a special appearance is appealed, the trial court retains jurisdiction of the case for certain limited purposes. Id. at 632 (Trial court did not lose jurisdiction to enter discovery order although it had sustained two prior special appearances.); Universal Cooperatives, Inc. v. Tasco, Inc., 300 N.W.2d 139, 142 (Iowa 1981) (Trial court did not err in allowing further service upon defendant pursuant to rules 56.1 and .2, although appeal was pending from sustention of special appearance.).

Nor is a plaintiffs choice any longer limited to an appeal or a petition to vacate. In Kagin’s Numismatic Auctions v. Criswell, 284 N.W.2d 224, 226 (Iowa 1979), we held, in the circumstances presented, that a rule 179(b) motion would be allowed following sustention of a special appearance and the appeal time would not be triggered until there was a ruling on the motion.

The above cases are not authority, however, for the view that a trial court may undo its final judgment absent a motion to enlarge under rule 179(b) or a petition to vacate under rule 252.² A final judgment puts it beyond the power of the trial court to return the parties to their original positions. Lyon v. Willie, 288 N.W.2d 884, 886 (Iowa 1980). The 1975 amendment to rule 48 did not change the fact that the sustention of a special appearance is a final judgment for the purposes of appeal. Tasco, 300 N.W.2d at 142. Following the court’s April 8 ruling sustaining Ritter’s special appearance, Robco filed no motion challenging the ruling. Consequently, the trial court’s June 21 “ruling” was without authority and a nullity.

We have no jurisdiction to consider this appeal, filed more than thirty days following trial court’s April 8 ruling, First National Bank v. Claiser, 308 N.W.2d 1, 2 (Iowa 1981), unless one of Robco’s remaining arguments is valid.

II. Robco urges us to consider its April 11 telephone call to Judge Denato the equivalent of a rule 179(b) motion. This would aid Robco because the time for appeal does not begin to run until the trial court has ruled on such a motion. Iowa R.App.P. 5(a); Kagin’s Numismatic Auctions, 284 N.W.2d at 226. Robco concedes it did not file a rule 179(b) motion, but contends such a motion need not be in writing.

We are unpersuaded for three reasons. First, there is nothing in the record to indicate such a motion was filed or served. Robco cites no authority for its assertion that such a motion need not be in writing. Its argument is contrary to the reasonable implication of rule 179(b) that such motions must be filed. Iowa R.Civ.P. 179(b) (“On motion joined with or filed within the time allowed for a motion for new trial ....) (emphasis added). In addition, rule 82 requires service of such motions. Iowa R.Civ.P. 82 (“Everything required by these rules to be filed ... shall be served upon each of the parties.”).

Even assuming Robco’s telephone call amounted to a rule 179(b) motion, there is a viable issue whether Robco selected the proper remedy in these circumstances. The purpose of a rule 179(b) motion is to give trial court an opportunity to enlarge its findings of fact and conclusions of law and, if need be, modify the judgment or substitute the judgment with a new one. Iowa R.Civ.P. 179(b). In this case, Robco sought post-ruling relief from what it alleged was a miscarriage in the service of Ritter’s special appearance. It at least is questionable whether relief appropriately could be supplied by enlarging the findings of fact or conclusions of law on the merits of the controversy.

On the other hand, it is plain that a misfortune of this kind may be corrected by a rule 252 petition to vacate. By its terms, that rule lends aid to one caught in the predicament in which Robco found itself.

Iowa Rule of Civil Procedure 252 states:

Upon timely petition and notice ... the court may ... vacate ... a final judgment ... on any of the following grounds:

(b) Irregularity or fraud practiced in obtaining the same;

(e) Unavoidable casualty or misfortune preventing the party from prosecuting or defending.

Oldis supports the view that a failure of service amounts to unavoidable casualty. Oldis, 259 Iowa at 1117-18, 147 N.W.2d at 203-04 (attorney failed to resist special appearance, expecting to make his argument at the hearing requested by opposing attorney but not held).

Finally, we reject Robco’s argument because adoption of its view would invite chaos in the district courts. Allowing counsel to make oral, ex parte, post-trial motions would degrade the importance and purpose of the rules of civil procedure.

Robco also contends trial court’s order of April 25, setting a hearing for reconsideration of its April 8 ruling, was an order nunc pro tune, nullifying its prior action. We may set to one side our case law that holds a nunc pro tunc order ordinarily does not extend the time for filing notice of appeal. State v. Onstot, 268 N.W.2d 219, 220 (Iowa 1978). We capsulated our rules governing nunc pro tunc orders in McVay v. Kenneth E. Montz Implement Co., 287 N.W.2d 149, 150-51 (Iowa 1980):

Literally nunc pro tunc means “now for then.” Black’s Law Dictionary 1218 (Rev. 4th ed. 1968). A nunc pro tunc entry makes the record show now what was actually done then. See Feddersen v. Feddersen, 271 N.W.2d 717, 718 (Iowa 1978); State v. Onstot, 268 N.W.2d 219, 220 (Iowa 1978); Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969). Its purpose is “to make the record show truthfully what judgment was actually rendered .... ” General Mills, Inc. v. Prall, 244 Iowa 218, 225, 56 N.W.2d 596, 600 (1953). “It is not for the purpose of correcting judicial thinking, a judicial conclusion or mistake of law." Head-ley, 172 N.W.2d at 108 (emphasis added).... Thus if a court makes an error of fact or law in arriving at its judgment, the appropriate remedy is not by way of a nunc pro tunc order but by other available procedures such as a motion under rule 179(b), R.Civ.P.

See generally State v. Steffens, 282 N.W.2d 120 (Iowa 1979).

A nunc pro tunc order is inapplicable in this case. When the district court entered its ruling sustaining Ritter’s special appearance, it meant to do just that; the court did not inadvertently sustain the appearance while intending to do otherwise. See McVay, 287 N.W.2d at 151 (“[T]he intent of a trial judge is crucial to the determination of whether a nunc pro tunc order is appropriate to ‘correct’ a record.”).

Nor do we believe, in the circumstances of this case, the court had some inherent power to nullify its April 8 judgment on the basis of a telephone call, assuming this was the intent, although certainly not articulated, in its April 25 order. The only decision cited by Robco for this proposition is McVay, from which we have quoted above. Also inapposite is Miller v. Farmers Cooperative Co., 176 N.W.2d 832, 834-36 (Iowa 1970). The district court in Miller never obtained jurisdiction of an out-of-state defendant, who successfully raised the total absence of jurisdiction for a personal judgment by a motion to set aside. Such motions challenging a void judgment are not confined to the ordinary time limitations of rule and statute. See Dimmitt v. Campbell, 260 Iowa 884, 888, 151 N.W.2d 562, 565 (1967). Similarly irrelevant to the issue before us are the decisions in Peterson v. Eitzen, 173 N.W.2d 848, 849-50 (Iowa 1970) (court entered a specific written nunc pro tunc order, expressing its intent that the dismissal entered the day before was without prejudice); and Todhunter v. DeGraff 164 Iowa 567, 575, 146 N.W. 66, 70 (1914) (court set aside divorce judgment on proof that defendant, who was “served” by publication, had not deserted plaintiff but was a committed “insane person” at all relevant times).

We are unable to adopt any of the grounds advanced by Robco in support of our jurisdiction to consider this appeal. Accordingly, this appeal must be dismissed.

APPEAL DISMISSED.

All Justices concur except McCORMICK, CARTER and WOLLE, JJ., who dissent.

1 . The appropriate relief is now a motion to quash, not to dismiss. See Universal Cooperatives, Inc. v. Tasco, Inc., 300 N.W.2d 139, 142 (Iowa 1981); 1 A. Vestal & P. Willson, Iowa Practice § 15.03(2) (1974 & Supp.1982).

2 . The general language of Restatement (Second) of Judgments section 71, although superficially helpful to Robco, is inapplicable here as shown by the lead sentence in comment a under the rule, entitled “scope and rationale”: “This Section applies to judgments rendered in contested actions as distinct from default judgments.” Relief from a valid default judgment is the subject of section 67. Comment d following that section explains that "[o]nce having discovered that he is in default, the applicant for relief must act with reasonable promptness and within the tíme limits of an applicable statute or rule of court." (Emphasis added.) An applicable rule under the federal practice is Federal Rule of Civil Procedure 60(b) (“Relief From Judgment or Order”) referred to in Chanofsky v. Chase Manhattan Corp., 530 F.2d 470, 472 (2d Cir.1976). That rule requires motions to be filed within one year when alleging several of the grounds for relief, and contains language similar to Iowa Rule of Civil Procedure 252 ("Judgment vacated or modified — grounds”).

The obscure language in Jacobson v. Leap, 249 Iowa 1036, 1039, 88 N.W.2d 919, 921 (1958), indicating petitions filed under rules of civil procedure 252 and 253 are not applicable when the judgment is void but "may be considered as motions," is clarified by a reading of the cases cited in support of that statement. The "motions” referred to are challenges to the jurisdiction of district court, Miller v. Miller, 242 Iowa 706, 708-09, 46 N.W.2d 732, 733 (1951), which properly are denoted "motions to vacate,” and may be brought at any time. Williamson v. Williamson, 179 Iowa 489, 493-94, 161 N.W.482, 484-85 (1917); see Miller v. Farmers Cooperative Co., 176 N.W.2d 832, 835 (Iowa 1970).