
    L. C. Yost, Appellee, v. C. W. Gadd, Appellant. C. W. Gadd, Petitioner, v. T. G. Garfield, Judge, Respondent.
    No. 44874.
    
      November 21, 1939.
    Alan Lotb, for appellant-petitioner.
    Edward Robinson, for appellee and respondent.
   Miller, J.

Tbis matter represents two proceedings in this court wbicb bave been ordered consolidated and submitted together.

Tbe controversy involves proceedings in tbe district court after an appeal bad been perfected from a judgment entered by a justice of tbe peace. In tbe petition before tbe justice, appellee sought to recover tbe sum of $94 claimed to be due on account, by virtue of tbe sale of a radio to appellant. Appellant filed a verified answer asserting three defenses, one of wbicb was based upon tbe allegation that tbe delivery of tbe radio was conditional, and, as tbe condition was not complied with, tbe sale was never completed. Tbe other two defenses involve tbe legality of tbe assignment of the account to appellee by tbe trustee in bankruptcy for tbe original seller. Trial was bad in tbe justice court before a jury, wbicb returned a verdict in favor of appellee, upon wbicb verdict judgment was entered in tbe sum of $74 together with interest and costs. Appellant perfected bis appeal to tbe district court and tbe case was docketed September 1, 1930.

Nothing appears to have been done about the ease in the district court, and a year later, on September 24, 1931, the judge entered upon the court calendar the following:

“Sept. 24, 1931. Dismissed under Rule 4.”

The court rules included the following:

“Fourth: That all cases that have been pending, undis-posed of, on the court’s calendar for one or more years, which have not been noticed for trial for the pending term, shall be dismissed without prejudice at plaintiff’s cost.”

Pursuant to the aforesaid entry on the calendar and purportedly in conformity with said Rule 4, the clerk, on the same day, entered in the journal a judgment which recited that the appeal was dismissed, without prejudice, for failure to comply with Rule 4, the judgment of the justice was therefore confirmed and judgment was accordingly rendered against appellant in the sum of $74 with interest at 6 per cent per annum from August 22, 1930, and for costs taxed at $20.65. The proceedings in the district court which resulted in such judgment, were had in the absence of counsel for either party and without knowledge of such counsel.

In the summer of 1938, appellant had an abstract of title prepared in reference to some real estate owned by him. The judgment was included in the abstract. This was the first actual notice or knowledge of the judgment in the district court which either appellant or his attorney received. Appellant promptly filed a motion to correct the record, which recited the entry on the calendar and the judgment entered by the clerk pursuant thereto, and asserted that the entries of the clerk were made without the knowledge of or notice to either party or the court, were unauthorized and void, not in conformity with the order of court, not signed by a judge of the court, that no attempt was made to enforce the pretended judgment, and that defendant did not learn thereof until a few days previous when it appeared upon his abstract of title. Appellant prayed that the court expunge the entries of the clerk and substitute therefor the provision “that said cause was, on September 24, 1931, dismissed without prejudice at plaintiff’s cost” and that the records of the court be so corrected nunc pro tunc as of September 24, 1931.

Appellee resisted the motion, asserting that appellant, by his appeal, undertook the duty to prosecute the same with reasonable diligence, that the appeal had the effect of suspending proceedings in the justice court, but was properly dismissed by the entry of the district court in September, 1931; that appellant had constructive notice thereof, and any right he might claim to have the order or judgment set aside has been waived and surrendered by delay and negligence; that no proper showing of excuse for delay was made or of any fraud, unavoidable casualty or misfortune preventing appellant from filing his motion or petition promptly.

Trial was had before the court. Appellant introduced evidence to support the allegations of his motion. The judge testified that he had no recollection of the circumstances under which he made the entry but indicated that the list of dismissals is customarily prepared by the clerk and the entries in the calendar made by a judge from such list. Appellee introduced no evidence and the matter was submitted.

The court determined that appellant’s contention that, upon an appeal from justice court even by a defendant, the cause stands for trial anew, was not determinative because, appellant having brought the case to the district court and having failed to bring it on for trial, the rule required dismissal of the appeal. The court accordingly denied the motion to correct the record except that the judgment entered by the clerk was expunged and, in lieu thereof, it was determined that the dismissal of the appeal was without prejudice to appellee’s right to file a transcript of the judgment of the justice of the peace and enforce the same.

Appellant’s counsel, being apprehensive as to the amount involved, presented to the judge a certificate to allow an appeal under section 12833 of the Code, but the certificate of appeal was refused. Notwithstanding such refusal, appellant served notice of appeal and also applied to a judge of this court for a writ of certiorari. The application was granted and the writ issued, and, upon further order, the appeal and proceedings in certiorari were consolidated and the two matters submitted together in this court.

I. At the outset, we are faced with appellee’s motion to dismiss, which is based upon the assertion that the amount in controversy is less than $100, and accordingly, since tbe trial court refused to grant a certificate pursuant to tbe provisions of said section 12833, tbis court bas no jurisdiction to entertain tbe appeal.

Tbis court bas recognized repeatedly tbat, in determining tbe amount in controversy under this section, tbe allegations of tbe pleadings are controlling. Lingo v. Belt, 198 Iowa 1276, 201 N. W. 5. We bave also beld tbat, where an appeal is taken from a judgment by a justice of tbe peace, interest on tbe judgment will not be considered in determining tbe amount in controversy where tbe propriety of tbe judgment is tbe only issue. Hays v. Chicago B. & Q. Ry., 64 Iowa 593, 21 N. W. 98. We have also beld tbat costs taxed by tbe justice are not to be included in determining the amount in controversy. Ardery v. Chicago B. & Q. Ry., 65 Iowa 723, 23 N. W. 141. In tbis case, tbe petition filed before tbe justice sought recovery in tbe sum of $94. No amendment to tbe petition was filed in tbe district court and, accordingly, under tbe pleadings which concern tbe original demand of appellee, only $94 is involved and, were tbe pleadings in tbe justice court and tbe appeal from tbe judgment of tbe justice tbe only matters involved, tbe motion to dismiss would be well grounded.

However, under tbe record here presented to us, other matters are involved. Tbe pleadings, upon which tbe district court acted herein, were not tbe pleadings filed prior to tbe dismissal of tbe appeal and tbe entry of judgment in tbe district court, but are pleadings filed since tbat time, namely, appellant’s motion to correct tbe record and appellee’s resistance thereto. These pleadings are tbe ones which determine tbe amount in controversy and, when they are considered, we are of tbe opinion tbat tbe jurisdictional amount is shown to be involved.

In tbe case of Holmes v. Hull, 48 Iowa 177, a judgment, rendered by a justice of tbe peace, was attacked by independent proceedings in tbe circuit court on tbe grounds tbat tbe justice bad no power or jurisdiction to render tbe same. Tbe judgment was for $100 and $6.25 costs, tbe judgment to bear interest from its date. Tbe proceedings in tbe circuit court were commenced two weeks after tbe judgment bad been rendered. Tbis court beld tbat tbe interest, which accrued during tbat two weeks’ period, should be included in determining the amount in controversy and, accordingly, more than $100 was involved. In tbe case of Dryden v. Wyllis, 51 Iowa 534, 1 N. W. 703, an action was brought to vacate a judgment rendered by a justice of the peace on the grounds that it was illegally obtained, and that fraud had been practiced by the plaintiff and his attorney. The judgment was for $100 and costs. The proceedings were commenced one year after the judgment was rendered. This court held that the interest, accruing after the judgment was rendered, should be added to the amount of the judgment and, accordingly, more than $100 was involved. The holdings of this court in the two cases last cited were expressly followed in the case of Griffin & Adams v. Harriman, 74 Iowa 436, 38 N.W. 139.

The cases last above cited seem to be controlling here. Appellant’s motion to correct the record was filed in the district court July 9, 1938. This motion attacked a purported judgment of the district court for the sum of $74 with interest at 6 per cent from August 22, 1930. The accrued interest was approximately $35, which, added to the amount of the judgment, developed an amount in controversy in excess of $100. Accordingly, appellee’s motion to dismiss the appeal herein must be and it is overruled.

The petition in certiorari is based upon the contention that the court exceeded its jurisdiction in the interpretation of its Rule 4. However that may be, since appellant has a complete remedy by appeal herein, the proceedings in certiorari are unnecessary. The writ is annulled.

II. In determining whether or not the court erred in dismissing appellant’s appeal for want of prosecution, we deem it important to note that there are two methods whereby proceedings before a justice of the peace may be transferred to the district court. Section 10582 provides for such a transfer by appeal, and section 10605 provides for such transfer by writ of error. In this case, appellant undertook to bring the ease to the district court, by appeal. Accordingly, the statutes which refer to proceedings on appeal are the ones which we now undertake to construe, and we do not undertake to discuss or interpret the statutes in reference to proceedings on writ of error.

Section 10589 of tbe Code provides that, upon appeal being perfected, all further proceedings before the justice shall be suspended and the case will be in the- court to which the appeal is taken. Section 10595 provides that, if the appellant fails to pay the docket fee and have the case docketed by noon of the second day of the term at which the appeal should come on for trial, the appellee may do so and have the judgment below affirmed or have the ease set down for trial on its merits, as he may elect. This section also provides for appellant setting aside the default upon proper showing. Section 10598 provides: “An appeal brings up the action for trial on the merits alone.” This statute clearly indicates that, where the appeal is properly perfected and docketed, the case is in the district court as though it had been commenced there, and the judgment of the justice is vacated. Such seems to be the general rule of construction of similar statutes. In 16 R. C. L. 406, it is stated:

“Where the effect of an appeal is to transfer the entire record to the appellate court for a retrial as though originally brought therein, the judgment appealed from is completely annulled, and is not thereafter available for any purpose.”

The rule above announced was recognized and applied by this court in the case of Fogarty v. Battles, 145 Iowa 61, 123 N. W. 952. The language of this court in that case, appearing at page 64 of 145 Iowa, 123 N. W. at page 953, would seem to be directly applicable to the situation now before us. We there state:

“The appeal had been perfected, however, and the cause was pending in the district court, ‘for trial on the merits alone.’ Section 4562, Code. All further proceedings in the justice court had been suspended, and the cause was ‘in the court to which the appeal is taken.’ Section 4553, Code. Upon such appeal the judgment of the justice is vacated, in this respect differing from the rule which obtains in appeals from the district court, it being expressly provided that these shall not vacate or affect the judgment appealed from. For these reasons it is not clear what relief the attorney was demanding or claimed was granted save as this appears in the judgment rendered. From the circumstances which he called to the attention of the court that nothing had been done for more than a year, possibly it may be inferred that he intended to invoke a rule of the district court requiring the clerk to place on the docket ‘all undisposed of cases, and shall, opposite the title of each case, note the date of the filing of the petition, and if the case has been noticed for trial shall note that fact. It shall be the duty of the court at each term to call and dismiss every case in which the petition has been on file for one year unless good cause is shown why it has not been disposed of.’ But this did no more than authorize the dismissal of the case, an entirely different thing from entering judgment. If nothing had been done for more than a year, for all that appears this was quite as much the fault of one side as the other, and it can not be assumed that the court entered the judgment on this ground.”

The language of this court above-quoted sustains the contentions of appellant herein, and demonstrates that, if that case is to be followed, the district court was in error. We are of the opinion that the decision is sound and that the language used is a proper statement of the law. It also appears to have abundant support in the decisions from other jurisdictions having statutes similar to ours.

In the case of Chenowith v. Keenan, 61 W. Va. 108, 55 S. E. 991, 992, the court states:

“But an appeal from a justice’s judgment vacates the judgment and calls for a new trial, on which evidence and pleadings, though not before the justice, will be received. * * *

“The question in this case is this: Did the court err in allowing the plaintiffs to have the defendant, Keenan, called, and, he not appearing, dismiss his appeal, and render judgment for the plaintiffs affirming and repeating the judgment of the justice? We think it is very plain that the court erred herein. From authority given above, Keenan’s appeal simply brought the case for a new trial into the circuit court. The appeal worked that result. The plaintiffs were still under obligations to prove their case.”

In the case of Rabin v. Pierce, 10 Cal. App. 734, 103 P. 771, the court states:

‘ ‘ Section 980 of the Code of Civil Procedure, which confers upon tbe superior court power to dismiss an appeal, witb costs, or costs and penalty, for a failure to prosecute tbe same, bas been by tbe Supreme Court of tbis state, in tbe case of Alexander v. Municipal Court of Appeals (Cal. [2 Cal. Unrep. 390]) 4 P. 961, beld to apply only to cases wherein there was a failure technically to perfect the appeal. There is no warrant for tbe superior court to dismiss an appeal, after tbe same is once fully perfected, upon tbe motion of tbe plaintiff, because tbe appellant bas failed to prosecute tbe appeal witb diligence. The authority last cited determines tbe proposition that, where tbe appeal is upon questions of both law and fact, tbe plaintiff is tbe actor in tbe superior court, and that it is his duty to cause tbe prosecution of tbe action to a final determination, and no duty in that regard devolves upon a defendant, who is tbe appellant, notwithstanding be is invoking tbe jurisdiction of tbe appellate court.”

In the case of Barnes v. So. Ry. Co., 133 N. C. 130, 45 S. E. 531, is another case in which tbe defendant appealed from a judgment entered against him by a justice of tbe peace and tbe court to which tbe case was transferred undertook to dismiss it. In reversing tbe case, tbe court states:

“At May term, 1903, tbe court rendered judgment ‘that tbe defendant’s appeal be dismissed,’ for tbe reason, as was admitted in tbis court, and as is stated in tbe brief of defendant’s counsel, that tbe defendant bad failed to appear and prosecute bis appeal. Tbe Code provides that where an appeal is taken from a justice of tbe peace, a return to tbe appeal shall be made by tbe justice to tbe superior court, and ‘the clerk shall docket tbe case on bis trial docket for a new trial of tbe whole matter at tbe ensuing term of tbe court.’ Code [1883], sec. 880. When there is an appeal, therefore, the whole case must be tried de novo in the superior court. This being the law, tbe case stood upon tbe docket for tbe purpose of a trial just as any other case then pending in that court which was at issue, and tbe mere absence of tbe defendant did not relieve tbe plaintiff from tbe necessity of establishing his cause of action before a jury. When a case brought to tbe superior court by appeal from a justice of tbe peace is called for trial, if the plaintiff does not appear and prosecute, the court can have him called out, and enter a nonsuit; but tbe same rule does not apply to a defendant wbo absents himself. No judgment can be entered against Mm if he had answered, and has raised a material issue, without a trial.”

In the case of Reagan v. Louisiana Western Ry. Co., 143 La. 754, 79 So. 328, 329, plaintiff had recovered judgment in a justice court. Defendant appealed to the district court. The plaintiff there moved the court to dismiss the appeal for want of prosecution on the part of the defendant. The motion was overruled and on appeal the ruling was affirmed, the court stating:

“To hold that the statute is authority for a district judge to dismiss an appeal, because of the lapse of five years without any steps being taken in the prosecution thereof, we would have to say that a defendant who appeals from a judgment rendered in a justice of the peace court becomes the plaintiff in the district court. As appeals from the justice of the peace court are tried de novo in the district court, a defendant cannot be regarded as plaintiff merely because he is appellant in the district court.”

By reason of the foregoing, we are satisfied that the opinion of this court in the Fogarty ease above-quoted correctly construed our statutes. When this cause was docketed in the district court after appellant’s appeal had been perfected, the case was for trial on the merits alone and the judgment of the justice was vacated. The situation was analogous to that of the defendant securing a favorable ruling on a motion for new trial. It was the duty of the plaintiff to bring the case on for prosecution. Under the aforesaid Rule 4, the district court had the power to dismiss the case at plaintiff’s costs. It had no power to dismiss the appeal at defendant’s costs. The entry on the court calendar, “Dismissed under Rule 4”, meant that the cause of action was dismissed without prejudice at plaintiff’s costs. This was the only thing which the court had the power to do.

As stated in Burke v. Burke, 142 Iowa 206, 210, 119 N. W. 129, 130: “The rendition of a judgment is a judicial act, and the entry upon the record is purely ministerial.” The ministerial act of the clerk herein was not only a misinterpretation of the judge’s entry on the calendar, but was such an interpretation as would constitute action which was beyond the jurisdiction of the district court. Appellant’s motion to correct the record was well grounded in every respect and should have been sustained in its entirety.

The resistance which appellee filed in the trial court to appellant’s motion raised three propositions. The first proposition was that the clerk’s entry dismissing appellant’s appeal was proper because it was the duty of appellant to prosecute the appeal with reasonable diligence. We have already determined that there is no merit in this proposition.

The second proposition raised by appellee was that any right, which appellant might claim, to have the order and judgment set aside has been waived by delay and negligence. There is no merit in this proposition. This is clearly shown by the statement of this court in the case of Arnd v. Poston, 199 Iowa 931, at page 933, 203 N. W. 260, at page 261, wherein we state, as follows:

“It is fundamental law that courts possess the inherent power to correct the record and enter judgments nunc pro tunc, and the lapse of time is no obstacle to the exercise of such power. Snyder v. Fahey, 183 Iowa 1118; Fuller & Co. v. Stebbins, 49 Iowa 376; Hofacre v. Monticello, 128 Iowa 239; Puckett v. Gunther, 137 Iowa 647; same case, 142 Iowa 35; Dowling v. Webster County, 154 Iowa 603; Lambert v. Rice, 143 Iowa 70; Shephard v. Brenton, 20 Iowa 41; Day v. Goodwin, 104 Iowa 374; Doughty v. Meek, 105 Iowa 16; Mahaska County v. Bennett, 150 Iowa 216; Locher v. Livingston, 168 Iowa 457; Shelley v. Smith, 50 Iowa 543.”

The third proposition was that there is no claim or showing that any fraud, unavoidable casualty or misfortune prevented the defendant from filing his motion promptly. This proposition is likewise without merit. It also is a misconception of the purpose of a motion for mine pro tunc correction of the record. In the case of State v. Frey, 206 Iowa 981, at page 984, 221 N. W. 445, at page 447, we state as follows:

“The courts have inherent power to make orders nunc pro tunc, and to modify their records so as to make them speak the truth. Hofacre v. City of Monticello, 128 Iowa 239; Puckett v. Gunther, 137 Iowa 647; Puckett v. Gunther, 142 Iowa 35; Dowling v. Webster County, 154 Iowa 603; Lambert v. Rice, 143 Iowa 70; Snyder v. Fahey, 183 Iowa 1118; Fuller & Co. v. Stebbins, 49 Iowa 376.”

In this case, the motion of appellant was for the purpose of securing an order nunc pro tunc to modify the record made by the clerk so as to make it speak the truth. The truth which appellant is entitled to have spoken is that the calendar entry, “Dismissed under Rule 4”, meant that the cause of action was dismissed without prejudice at plaintiff’s costs. Appellant asked the court to correctly apply Rule 4 to this case. Appellee made no issue on the question, whether or not Rule 4 should be applied to the ease, but merely differed from appellant in regard to the effect to be produced by the application of the rule to the case. The rule must be applied in such a way that the record will speak the truth. Accordingly, the judgment of the district court must be and it is reversed and the cause is remanded with instructions to dismiss the case without prejudice at plaintiff’s costs. — Reversed and remanded with instructions.

OliveR, C. J., and Sager, Hasíilton, Hale, Stiger, Bliss, and Richards, JJ., concur.  