Conley v. Dugan , 105 Iowa 205 ( 1898 )

Waterman, J.

1 — Appellant assigns as error, first, the action of the trial court in sustaining the motion to dismiss the first action. No appeal being taken from the ruling, we cannot consider the matter. Indeed, we think the beginning of the second suit was a waiver of any right to complain of rulings in the first action. But, while we must accept the decision on the motion as final, there .are some matters incidental to the first action which are rendered necessary and proper for consideration here, by reason of the allegations of the petition in the second suit.

2 II. The next two assignments of error are based upon the rulings on demurrer, and they may very well be considered together. The original notice was served in the first action April 23d, fixing the time when the petition would be on file as June 1st. Plaintiff then waited until so late a date that .any slight interruption of the mail service would prevent him from complying with the terms of the notice, and sent the paper by mail to the clerk. Such interruption occurred, and the petition was not filed until after the date fixed in the notice.' This default entitled defendant to have the action dismissed. Code 1873, section 2600; Webster v. Hunter, 50 Iowa, 215. That this was negligence on defendant’s part, we think, is substantially settled by Clark v. Stevens, 55 Iowa, 361.

3 Plaintiff seeks to bring this action within the terms of Code 1873, section 2537, which provides, in substance, that, if plaintiff fail in his action through .any cause except negligence in its prosecution, a new suit, if brought within six months, shall be deemed a continuation of the first. But can what took place after the filing of the first petition in .any way excuse plaintiff,or operate to shield him from the consequences of his default? It is not alleged in the petition in this action that Beed was Dugan’s attorney in June, or had any authority to act or speak for him. If it can be said that plaintiff was not negligent in relying upon a statement made by a sworn officer of the court, while this might excuse his delay, it would not exoner ate him fróm the charge of negligence ia beginning the action; and it was for the latter, and not for delay, that his action was finally dismissed. If, by any wrongful act of Need, plaintiff was induced to wait until the dismissal of his action lost him his rights, it may be that he has ,a cause of action for this against Need; but he cannot excuse his own default by the plea that some person took ¡advantage, of it The judgment of the trial court is AFFIRMED.