Stolar v. Turner , 236 Iowa 628 ( 1945 )

Less than a year ago we deliberately filed an otherwise unnecessary written opinion solely in order to state our own interpretation of Rules 340 and 342 of our Rules of Civil Procedure. Schroder v. Claypool, 235 Iowa 135, 136, 16 N.W.2d 1. We were then, as now, passing on a motion of appellee to affirm the decision of the trial court for appellant's failure to comply with Rule 342. Although written opinions in such matters are not ordinarily resorted to, we thought "the questions of sufficientimportance and interest to the profession to warrant a publishedopinion." All justices concurred.

The opinion has stood for nine months and is now being overruled upon the theory that we then failed to take into account considerations that now seem controlling. I am fearful the real reason is that we have thus promptly come upon a case of seemingly greater hardship.

The assumption that we failed a few months ago to know or remember that certain of our rules were "domestic" and not statutory in character is not accurate. We were confronted then, as we still are, with a rule on its face clearly mandatory and not merely directory:

"If the printed record is not filed by the appellant with the Clerk of the trial court within ninety days after filing the notice of appeal or within such further time as fixed by the trial court, the appellee may file with the Clerk of the Supreme Court a copy of the final judgment or order appealed from * * * and cause the case to be docketed, and the appeal upon motion shall be dismissed, or the judgment or order affirmed." Rule 342 (c).

There is in this rule no suggestion that circumstances might be such as to excuse strict compliance or justify our waiving it. It supersedes section 12848, Iowa Code, 1939. Its language is identical with that of the Code section except for such formal change as was necessary to adapt it to the changed appellate procedure. It should have the same construction as was placed on the superseded statute. People v. Malone, 213 Cal. 406,2 P.2d 332.

There is and was every reason to assume that the new rule is just as mandatory as was the statute it superseded. Both are rules of procedure. The fact that we have (by Rule 371) asserted a retained right "to revoke, change or supplement" those rules relating to our own procedure should not be held to authorize us to disregard or waive one of them which we deliberately made mandatory in language and modeled after a former one which we had held mandatory. In fact, it has been suggested that a rule readily amendable should for that very reason be the more carefully construed so as not to do violence to its language. Gray v. Davidson, 15 Wash. 2d 257, 130 P.2d 341, 136 P.2d 187.

Our Rule 342 (c) prescribes a right which appellee may exercise, not merely a procedure to be followed by us. It may be agreed that Rules 342 (a) and (b), standing alone, could be waived by us. Standing alone they would not be mandatory. But by 342 (c) we granted appellee a right which would arise if appellant did not comply with 342 (a). In my judgment we should not deny that right once it has accrued in an individual case. Our right to amend the rule, applicable to future cases, is undoubted. But I question the soundness of amending, under the guise of waiver, so as to make the amendment relate back and apply to a case in which rights have already accrued.

In Division IV, second paragraph, of the majority opinion, Rules 340 to 353 are referred to as having originated from our own former rules, "very few of which were affected by statutes." Rule 342 (c) does not come within that description. It is based squarely upon Code section 12848. If it is a "domestic" rule now, it was, in character, one then. If it was formerly statutory, it is still statutory in character, notwithstanding our reservation in Rule 371 of the right to amend it, effective "at such time as the Court shall prescribe." The nature of the rule is fixed by its language and context and not by any reservation made by us. Whether it is "domestic" or statutory does not matter. That it is mandatory does.

The majority opinion refers to the cases in which we have said: "`This court may, under proper circumstances waive its own rules * * *.'" Coggon State Bk. v. Woods, 212 Iowa 1388, 1393,238 N.W. 448, 451, citing Newbury v. Getchell Martin Lbr. Co., 106 Iowa 140,76 N.W. 514. See, also, Miller v. Economy Hog Cattle Powder Co., 231 Iowa 1369, 4 N.W.2d 379, and Farmers State Sav. Bk. v. Miles, 206 Iowa 766, 768, 221 N.W. 449. The words "under proper circumstances" should be underscored. Surely they should be held effective to forbid waiver of a rule that gives an appellee an unqualified and unconditional right to a dismissal of the appeal or an affirmance of the decision in his favor. That rule is just as mandatory now as it was when embodied in the statute.

The distinction between mandatory and directory applies in the construction and application of court rules as it does in relation to statutes. The proposition is variously stated in 21 C.J.S., Courts, sections 176a, 177b, 178a:

"There is a distinction, however, between mandatory and directory rules; a mandatory rule which limits the power of the court as well as the parties must be complied with, and acts not complying therewith are void; but where a rule is merely directory it does not render the doing of a prescribed act at a different time or in a different manner void." Section 176a.

"Rules which are enacted by virtue of constitutional or statutory authority, and which are mandatory in their terms, should be construed in the same manner as statutes * * *. Strict interpretation will be given to provisions that are aimed to protect the rights of the parties; but provisions intended only for the convenience of, and aid to, the court should be liberally construed." Section 177b.

"While some authorities hold that a court has no power to suspend or modify its rules in a particular case, others hold that a court may exercise such power when justice so requires." * * *

"This conflict of authority is, however, more apparent than real, for while the cases do not always bring out the distinction clearly, the general tendency appears to be toward an opinion that the power of a court to modify or suspend its rules in particular cases depends largely on the character of the rule, the principle being that rules which are merely directory * * * may be dispensed with when the ends of justice so require, but rules which are mandatory must never be dispensed with in an arbitrary manner in cases where it will operate to the prejudice of the parties, or tend to unsettle the established practice of the court." Section 178a.

I have quoted at length from the text as a convenient way to avoid the still longer process of analyzing the many decisions. The soundness of the proposition stated seems to me beyond question. The text of 15 C.J. 909-913 is of similar tenor.

Reference is made in the opinion of the majority to the statement in Division I of the opinion in Schroder v. Claypool, supra, 235 Iowa 135, 138, 16 N.W.2d 1, 2:

"Decisions under the law as it stood immediately and for sometime before the adoption of the Rules of Civil Procedure are not controlling."

Following that it is pointed out that we nevertheless did rely on such former decisions.

We were confronted in that case by two motions: 1. Appellant's application, filed after the expiration of the ninety-day period allowed by Rule 342 (a), for additional time to prepare and file the record; and 2. appellee's motion to dismiss appeal or affirm the decision of the trial court under Rule 342 (c).

The quoted language from the Claypool case referred to the difference between Rule 342 (a) and Code section 12847 in that the latter expressly provided that extension of time for filing would only be granted before the expiration of the statutory time, which language is not found in the rule. We were there discussing appellant's tardy application for additional time in which to prepare and file the record. We were construing Rule 342 (a). For that purpose we properly resorted to decisions under statutes that did not expressly require that the extension order precede the expiration of the stated period of time, because Rule 342 (a) did not expressly so provide.

It was not, however, suggested that decisions involving Code section 12848 would not be helpful in determining the effect to be given Rule 342 (c). On the contrary, it was assumed that said rule should be construed the same as the corresponding Code section 12848. Both were mandatory in form and designed to serve the same purpose. If there was mischief in the statute as it had been construed, the rule should have corrected it. Such correction should not be made by giving the similar language of the rule a different construction.

A case quite in point is State ex rel. Burg v. City of Albuquerque, 33 N.M. 184, 262 P. 225. In that case a mandatory statutory rule had been repealed and superseded temporarily by an identical court rule pending a general revision of rules. It was held that adoption of the language of the old statutory rule adopted with it the interpretation of its mandatory character. "Even if the rule lacked the background of statute and decision, it may be doubted whether we should be justified in disregarding it merely to enable us to satisfy our sense of justice in a hard case." Opinion on second motion for rehearing, 262 P. 226.

A similar case is People v. Malone, supra, found in 213 Cal. 406,2 P.2d 332. I quote from the headnote [2 P.2d 332, headnote 2] that is accurate:

"Provisions of court rule following substantially language theretofore used in repealed law are to be interpreted in same manner."

It is a sound rule of construction. We held Code section 12848 to be mandatory. Coggon State Bk. v. Woods, supra, 212 Iowa 1388,238 N.W. 448. Rule 342 (c) practically re-enacted the statute without any change of language to soften its application as so construed. By what other or better light should we be guided in construing the rule?

We are, of course, not absolutely bound by stare decisis here any more than we would be upon any other proposition of law. But we are under a peculiar responsibility because we are not merely concerned with our own prior decision but with a court rule promulgated by ourselves in plain, unmistakable, and mandatory language. If that rule is now found to be too harsh and inelastic, we have reserved the power to ourselves, by Rule 371 (if indeed we had not the inherent power) to amend it.

It may be conceded freely that if the procedure is to be amended so as to provide against unexpected and excusable contingencies this case furnishes a fair example that would justify such modification. But the change should be made in an orderly way and not by indirection. It should be prospective, not retrospective. We have heretofore assumed that the liberal provisions for obtaining extensions of time in which to settle, print, and file records were sufficient protection against unforeseen casualty. If experience has shown that, in fairness to litigants, a more elastic procedure should be provided, the way for doing it is plain. We should follow that method. By so doing I submit we will more surely retain the respect of the profession for our rules, perhaps for the court itself.

I respectfully dissent and would sustain appellee's motion to affirm.