Fryman v. McCaffrey , 208 Iowa 531 ( 1928 )

I. We are not favored with an argument by appellees.

On December 28, 1923, appellant, as a principal contractor, filed a petition praying foreclosure of a mechanic's lien. On December 15, 1925, the case was dismissed. This was by a general order of court, by which said cause, with others, was dismissed for failure to file trial notices for three consecutive terms. On February 16, 1926, the plaintiff commenced the instant case, the petition being a copy of the petition filed in the case that was dismissed. A motion was filed by appellees to strike the petition, urging that the action was barred by the statute of limitations, and also that the former suit involving the same cause of action had been dismissed. The court sustained this motion, and from such ruling this appeal is taken.

The action was not barred by the statute of limitations. The last item of the account was furnished December 15, 1923. The petition was filed February 16, 1926. This was within time. Section 10296, Code of 1924; Stewart Co. v. Whicher, 168 Iowa 269; Squier v. Parks, 56 Iowa 407; Johnson v. Otto, 105 Iowa 605.

II. It appears from the record that a trial notice was duly filed for the successive terms of court while the former case was pending, and that, by mistake of the clerk, the trial notice did not properly appear on the docket. The dismissal of the former case did not involve any determination of the merits of the action. It was for an apparent failure to comply with the rule of the court respecting the filing of trial notices. Such dismissal did not work a determination of the merits of the controversy, nor bar appellant from maintaining the case at bar. Code Sections 11562 and 11563.

The order dismissing appellant's petition was erroneous, and because thereof the case is — Reversed.

STEVENS, C.J., and EVANS, KINDIG, and WAGNER, JJ., concur.

SUPPLEMENTAL OPINION.