IN THE SUPREME COURT OF IOWA

No. 11–0877

Filed November 2, 2012

LEONARD JACK,

Appellant,

vs.

P AND A FARMS, LTD., d/b/a

CROOKED CREEK SHOOTING

PRESERVE,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Washington County, 

Joel D. Yates, Judge.

Plaintiff seeks further review of court of appeals decision affirming 

district court’s entry of default judgment when he failed to personally 

appear for trial but his counsel was present to proceed on his behalf. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED.

James K. Weston II of Tom Riley Law Firm, Iowa City, for 

appellant.

Heather L. Carlson of McDonald, Woodward & Carlson, P.C., 

Davenport, for appellee.
2

ZAGER, Justice.

In this case we are called on to decide whether a trial court’s entry 

of a default judgment under Iowa Rule of Civil Procedure 1.971(3) is 

justified when a party fails to appear personally for trial but the party’s 

attorney is present and able to proceed in the client’s absence. The court 

of appeals affirmed the district court’s entry of a default judgment due to 

the plaintiff’s failure to appear personally at the time of his scheduled 

trial. We granted further review. We now vacate the opinion of the court 

of appeals, reverse the judgment of the district court, and remand for 

trial.

I. Factual and Procedural Background.

The relevant facts in this case are undisputed. In December 2005, 

Leonard Jack was an employee of P and A Farms, Ltd., doing business as 

Crooked Creek Shooting Preserve (Crooked Creek). Crooked Creek is a 

game preserve located in Washington County, Iowa, and its business 

activities include raising mallard ducks used for training hunting dogs 

and for human consumption. As an employee of Crooked Creek, Jack’s 

responsibilities included caring for the ducks, feeding the ducks, 

maintaining the duck pens, and cleaning ducks for customers.

Crooked Creek housed approximately 3400 ducks in a 100 foot by 

200 foot pen which was exposed to the elements but covered by a net. 

On December 20, 2005, the pen was covered in snow and ice. Jack 

slipped on the ice and fell while carrying two five-gallon buckets of grain. 

As a result, he sustained a shoulder injury. Jack received extensive 

treatment for the injury including surgery at the University of Iowa 

Hospitals and Clinics. On May 24, 2007, Jack filed a petition at law and 

jury demand in the Washington County District Court alleging medical 
3

expenses of approximately $47,000.1 He also alleged that his injury 

occurred within the course and scope of his employment and that at the 

time of his injury Crooked Creek did not have workers’ compensation 

liability insurance as required by law. Therefore, under Iowa Code 

section 87.21 (2005), it was presumed that his injuries were the direct 

result of, and grew out of, the negligence of Crooked Creek and that such 

negligence was the proximate cause of his injuries. Jack alleged 

damages for past and future medical expenses, past and future lost 

wages, past and future physical pain and suffering, and past and future 

loss of full body.

Trial was originally set for April 1, 2008. On January 25, 2008, 

Jack’s counsel served requests for admissions on Crooked Creek, which 

did not timely respond.2 However, on February 8, 2008, counsel for 

Crooked Creek filed a motion to withdraw from representation and a 

motion to continue. These resisted motions were granted by the court, 

which set a new trial date for December 16, 2008. New counsel for 

Crooked Creek did not file an appearance until October 24, 2008—over 

seven months later. Various motions were subsequently ruled on by the 

court. On November 7, 2008, the court entered an order denying

Crooked Creek’s motion to continue the trial and ordering Jack to make 

himself available for deposition. The court granted Crooked Creek’s 

motion to file untimely responses to the January 25 request for 

admissions and ordered the responses be filed by November 18. On 

 1The amount incurred for medical expenses reflected in Jack’s request for 

admissions and in his appellate brief is $44,697.72. Therefore, we will assume that 

$44,697.72 is the amount of medical expenses Jack seeks to recover.

2Pursuant to Iowa Rule of Civil Procedure 1.510(2), the matters upon which 

Jack requested admissions were deemed admitted when Crooked Creek failed to 

respond within thirty days.
4

November 20, Jack filed a motion to reconsider the district court’s order 

requiring him to make himself available for deposition in Washington 

County, Iowa, by December 1. Therein Jack asserted that he had 

recently started a new job in Idaho and traveling to Iowa for both the 

December 1 deposition and the December 16 trial would result in him 

losing his job.

On November 25, 2008, Jack filed a motion to remove the case 

from the operation of Iowa Rule of Civil Procedure 1.944.3 The motion 

indicated that counsel for both parties agreed a continuance would be in 

the interest of justice. This motion was granted, and the trial in this 

matter was continued until June 9, 2009.

On June 1, 2009, Crooked Creek filed an application to serve 

responses to requests for admissions. Attached to that motion were 

responses denying six of the requests in whole or in part. The court 

granted Crooked Creek’s application upon finding that Jack would not be 

unfairly prejudiced. Trial did not take place as scheduled on June 9, 

2009, and the trial was continued and rescheduled no fewer than four 

times at the request of each of the parties. By order entered June 24, 

2010, jury trial was scheduled to begin on May 3, 2011.

On May 3, 2011, Jack failed to appear personally for trial. After 

the jury was impaneled, a hearing was held outside the presence of the 

jury. Jack’s counsel informed the court that it was his understanding 

Jack, who had since moved to Idaho, was absent because he was 

 3Iowa Rule of Civil Procedure 1.944 governs dismissal for want of prosecution. 

Subsection 2 states, in part, “All cases at law or in equity where the petition has been 

filed more than one year prior to July 15 of any year shall be tried prior to January 1 of 

the next succeeding year.” Iowa R. Civ. P. 1.944(2).
5

“stranded.” He also indicated he had notified Jack of the trial date by 

letter on June 24, 2010, the same day the trial date was scheduled.

Jack’s counsel requested a continuance, and Crooked Creek 

moved to dismiss. After the court denied the motion to continue, Jack’s 

counsel resisted the dismissal and argued in the alternative that based 

on the statutory presumptions contained in Iowa Code section 87.21, 

and the admissions made by Crooked Creek, Jack had already made a 

prima facie case of negligence. Therefore, as his attorney, he should be 

allowed to proceed to trial without Jack being personally present to 

testify. He also requested the opportunity to submit Jack’s deposition 

testimony in lieu of his trial testimony.

The district court granted Crooked Creek’s motion to dismiss and 

entered a ruling stating:

This case was scheduled for a jury trial commencing at 

9:00 a.m. on May 3, 2011. Counsel for the Plaintiff and the 

Defendant appeared; however, the Plaintiff failed to 

personally appear. Plaintiff’s counsel made an oral motion to 

continue the trial to a later date. Defendant’s counsel 

resisted the motion to continue and moved that the case be 

dismissed. The Court notes that this case has been on file 

since 2007, that this trial date has been set for almost a 

year, and that the Plaintiff received notice of the trial date. 

After considering the arguments of counsel, the Court finds 

that the Plaintiff’s motion to continue the trial should be and 

is here by denied and that the Defendant[’]s motion for 

dismissal should be and is hereby granted.

On May 12, Jack filed a resisted motion to enlarge or amend, 

requesting that the district court enter a ruling addressing his counsel’s 

proposition to proceed to trial in Jack’s absence. He also requested that 

the district court reconsider its denial of his motion for continuance. The 

court granted the motion to enlarge or amend and added the following 

language to its previous ruling:
6

This lawsuit was commenced May 24th, 2007. Both 

parties were notified on June 24th, 2010 that the jury trial 

was scheduled to start at 9:30 a.m. on May 3rd, 2011.

Plaintiff Leonard Jack failed to appear for his jury trial 

on May 3rd. Attorney for Jack orally asked the Court to 

continue the trial minutes before it was to start. Defendants 

resisted any continuance and were ready to proceed. The 

court finds that the attorney for Plaintiff failed to state any 

good cause for continuing the trial.

Additionally, acting pursuant to Iowa Rule of Civil 

Pro[cedure] 1.971(3), the Court finds Leonard Jack to be in

default when he failed to be present for trial.

On June 3, 2011, Jack filed a notice of appeal, and we transferred 

the case to the court of appeals. A majority of the three-judge panel of 

the court of appeals affirmed the holding that dismissal was appropriate 

under rule 1.971(3) and that Jack’s absence prevented Crooked Creek 

from cross-examining him, which is essential to a fair trial. The majority 

also found that it was within the district court’s discretion to decline to 

order a less drastic remedy. The dissenting judge wrote separately, 

concurring in part and dissenting in part. In her view, rule 1.971(3) did 

not require dismissal in a case such as this where a party was not 

personally present for trial, but his counsel appeared on his behalf and 

requested to proceed to trial.

II. Standard of Review.

“A decision to grant or deny a motion for default judgment rests in 

the sound discretion of the trial court.” See Wilson v. Liberty Mut. 

Grp., 666 N.W.2d 163, 165 (Iowa 2003). Reversal is only warranted upon 

a finding that the court’s discretion has been abused. Id. Similarly, we 

review a district court’s decision to grant or deny a motion for 

continuance for abuse of discretion. Hawkeye Bank & Trust, Nat’l Ass’n 

v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990). However, this case turns on 

the interpretation of Iowa Rule of Civil Procedure 1.971(3), and we review 
7

the interpretation of our rules of civil procedure for correction of errors at 

law. Reis v. Iowa Dist. Ct., 787 N.W.2d 61, 66 (Iowa 2010); see also 

Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 389 n.6 (Iowa 

2012) (“When a discretionary decision by a trial court involves an 

erroneous interpretation of law, our review is for legal error.”).

III. Discussion.

A. Default Judgment Under Rule 1.971(3). A default judgment 

is a judgment against the party who has failed to take the next step 

required in the progress of a lawsuit. Kirby v. Holman, 238 Iowa 355, 

374, 25 N.W.2d 664, 674 (1947). Iowa Rule of Civil Procedure 1.971 

governs default judgments and subsection 3 states, “A party shall be in 

default whenever that party . . . [f]ails to be present for trial.” We do not 

have any cases interpreting the word “party” as it appears in rule 

1.971(3) or indicating whether the rule permits a party’s counsel to 

appear on behalf of a party who is not personally present.4 Nor do we 

have any recent cases discussing the entry of default judgment against a 

party for failure to be present at trial.

“Our ultimate goal in construing statutes is to find the true 

intention of the legislature.”5 Iowa Dep’t of Transp. v. Soward, 650 

N.W.2d 569, 571 (Iowa 2002). “We look to both the language and the 

 4An interpretation of Federal Rule of Civil Procedure 55 governing default 

judgments in federal court is not instructive in the case at bar. 28 U.S.C. § 1654 (2006) 

definitively provides that “[i]n all courts of the United States the parties may plead and 

conduct their own cases personally or by counsel as, by the rules of such courts, 

respectively, are permitted to manage and conduct causes therein.” Thus, § 1654 

affirmatively resolves the issue of whether a party who does not personally appear for 

trial may proceed through counsel.

5We acknowledge that the Iowa Rules of Civil Procedure are promulgated by this 

court in consultation with the Iowa Supreme Court Advisory Committee on Rules of 

Civil Procedure. Nonetheless, we apply ordinary canons of statutory construction in 

interpreting these rules. See City of Sioux City v. Freese, 611 N.W.2d 777, 779 (Iowa 

2000) (“[W]e interpret rules in the same manner we interpret statutes.”).
8

purpose behind the statute.” Iowa Comprehensive Petroleum 

Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 

363 (Iowa 2000). We also consider relevant statutes together and try to 

harmonize them. 6 Soward, 650 N.W.2d at 571. “If the legislature has 

not defined words of a statute, we may refer to prior decisions of this 

court and others, similar statutes, dictionary definitions, and common 

usage.” Id.

Crooked Creek relies on an unreported court of appeals decision in 

which that court affirmed a default judgment against a plaintiff who was 

absent at the time designated for trial and after the jury had been 

impaneled. Manguno v. Bowden, No. 00–1646, 2002 WL 1840867, *1 

(Iowa Ct. App. August 14, 2002). Manguno is distinguishable because 

the plaintiff was pro se, and accordingly, nobody was present to proceed 

in the plaintiff’s absence. Id.; see also Krugman v. Palmer Coll. of 

Chiropractic, 422 N.W.2d 470, 473, 475 (Iowa 1988) (affirming entry of 

default judgment when the party, her experts, and her attorney failed to 

 6We note at the outset of our analysis that rule 1.404 governing appearances is 

inapplicable to the case at bar. Rule 1.404(2) states:

The court shall have no power to treat an appearance as 

sufficient to delay or prevent a default or any other order which would be 

made in absence thereof, or of timely pleading. Notice and opportunity to 

respond to any motion for judgment under rule 1.973(2) shall be given to 

any party who has appeared.

Thus, at first blush, rule 1.404(2) seems to suggest that the appearance of an 

attorney on behalf of a party is insufficient to prevent an entry of default judgment 

justified under rule 1.971. However, the term “appearance” as it is used in rule 

1.404(2) does not address the concept of an attorney showing up for trial on behalf of a 

party who is not physically present. Rather, rule 1.404(2) refers to the more legalistic 

definition of appearance in which an attorney clearly indicates to the court that he or 

she is the attorney “in charge of the case.” See Iowa R. Civ. P. 1.404(1). Jack is not 

arguing that his attorney’s formal “appearance” in this case by signing the petition 

prevented the court from entering a default judgment under rule 1.971(3). Rather, Jack 

is arguing that the district court erred in entering a default judgment under rule 

1.971(3) because his attorney was “present for trial” on his behalf.
9

appear for depositions and trial); Langner v. Mull, 453 N.W.2d 644, 647–

49 (Iowa Ct. App. 1990) (affirming entry of default judgment against pro 

se party who failed to appear for trial).

In its brief, Crooked Creek also cites Hebert v. C.F. Bean Corp., a 

Louisiana court of appeals decision upholding the trial court’s dismissal 

of the plaintiff’s action where, as here, the plaintiff’s counsel, but not the 

plaintiff, appeared for trial. 785 So. 2d 1029, 1031 (La. Ct. App. 2001). 

We are not persuaded that Hebert supports Crooked Creek’s 

interpretation of rule 1.971(3). In that case, the court expressly rested 

its holding on the fact that “there [wa]s no evidence that Plaintiff’s 

counsel was ready to proceed without his client. Therefore, the mere 

appearance of Plaintiff’s counsel [wa]s not enough to defeat the dismissal 

. . . .” Id. Thus, the Louisiana court provided that dismissal of a 

plaintiff’s action for failure to appear personally may be improper where, 

as here, the plaintiff’s counsel appears and is ready to proceed on the 

client’s behalf. Id.

Crooked Creek contends, essentially, that our rules of civil 

procedure always require a party to be personally present for trial and do 

not permit a party to proceed to trial through counsel. However, 

numerous cases demonstrate that the rules were intended to 

contemplate a variety of situations in which a party who is not personally 

present may, through counsel, proceed to a trial where substantial rights 

are adjudicated.

In Vaux v. Hensal, we held that the trial court properly entered a 

default judgment against a defendant who timely filed an answer but 

failed to appear for trial. 224 Iowa 1055, 1059, 277 N.W. 718, 720–21 

(Iowa 1938). However, in that case “neither the defendant . . . nor his 

attorney appeared in court” on the day the case was assigned for trial. 
10

Id. at 1056, 277 N.W. at 719. Under instruction of the court, the clerk of 

court telephoned the defendant’s attorney and advised him that the case 

had been rescheduled for the following day. Id. Despite receipt of this 

message, the next day when trial was scheduled to begin, and after the 

jury had been impaneled, both the defendant and his attorney again 

failed to show up. Id. The plaintiff waived the jury, and the court 

“entered an order finding the defendant in default for want of appearance 

and proceeded to hear plaintiff’s evidence.” Id.

After the introduction of a portion of the plaintiff’s evidence, the 

defendant’s counsel appeared and requested “the default be set aside 

and that he be permitted to make his defense to the plaintiff’s claim.” Id. 

The court agreed, but the defendant’s attorney declined to proceed when 

the court refused to acquiesce in his insistence upon a jury trial. Id. at 

1056–57, 277 N.W. at 719. Thereafter, the plaintiff proceeded to 

introduce its evidence to the court, and the court entered a judgment 

against the defendant. Id. at 1057, 277 N.W. at 719. The defendant 

appealed alleging the court erred in entering the default for 

nonappearance. Id. at 1057, 277 N.W. at 719–20. On appeal we 

affirmed. Id. at 1059, 277 N.W. at 721. Vaux is instructive in that it 

demonstrates a district court’s authority to sanction a party for failure to 

appear for trial. Id. at 1057, 277 N.W. at 720. Notably, however, even 

though the defendant was not personally present, the court gave the 

defendant’s counsel the option to defend the case in the defendant’s 

absence. Id. at 1056–57, 277 N.W. at 719.

In Myers v. Emke, an inmate filed a civil rights action against the 

state. 476 N.W.2d 84, 84 (Iowa 1991). Through counsel, the inmate filed 

a motion requesting the court enter an order allowing the plaintiff to be 

transported from prison for the trial. Id. The district court denied the 
11

plaintiff’s motion. Id. On appeal, we affirmed the holding that “[a]n 

inmate has no constitutional right to be produced as a witness in his 

own civil rights action.” Id. at 85. We noted that the “plaintiff’s civil 

action d[id] not present any problems that would prevent the trial court 

from adequately functioning and dispensing justice in plaintiff’s 

absence.” Id. Because the plaintiff’s presence was not “reasonably 

necessary” the court “lack[ed] inherent power to order his presence.” Id.

The holding in Myers rests largely upon the doctrine of separation 

of powers, and we discussed our reluctance to invade the province of the 

executive branch. Id. at 86. Nonetheless, the Myers case provides a 

discrete example of a situation in which a party has been not only 

permitted, but required, to advance his claim through counsel. Id.

In Heck v. Anderson, we said “[t]he necessity of the presence of a 

party at the trial of a civil action for damages against him is admittedly 

not absolute.” 234 Iowa 379, 384, 12 N.W.2d 849, 851 (1944) (quoting 

Hellberg v. Warner, 48 N.E.2d 972, 975 (Ill. Ct. App. 1943) (applying 

Soldiers’ and Sailors’ Civil Relief Act of October of 1940)); see also 

Jamison v. Knosby, 423 N.W.2d 2, 4 (1988) (noting defendant did not 

appear personally at trial but his counsel appeared on his behalf); Semler 

v. Oertwig, 234 Iowa 233, 242, 12 N.W.2d 265, 270 (Iowa 1943) (noting 

that in some circumstances presence of a military serviceman at trial 

may be “unnecessary to an adequate protection of his rights”). This 

statement would be at odds with a default judgment rule that always 

required a party to appear personally at trial. Crooked Creek’s 

interpretation of rule 1.971(3) is also at odds with numerous trial 

scenarios in which it is commonly understood that a party may advance 

claims through counsel without being personally present.
12

For instance, both postconviction relief proceedings and 

termination of parental rights proceedings are generally governed by the 

rules of civil procedure. See Iowa Code § 822.7 (stating the rules of civil 

procedure are applicable to postconviction relief proceedings); In re 

Interest of B.G.C., 496 N.W.2d 239, 242 (Iowa 1992) (“Section 600A.7(1) 

provides that termination hearings shall be conducted in accordance 

with our rules of civil procedure.”). Nonetheless, we have held that a 

postconviction relief applicant has no due process or statutory right to 

personally attend the postconviction relief trial. See Webb v. State, 555 

N.W.2d 824, 827 (Iowa 1996).

Similarly, in In re Interest of J.S., our court of appeals held that a 

parent’s physical presence is not required at a termination of parental 

rights hearing when counsel is present on the parent’s behalf. 470 

N.W.2d 48, 52 (Iowa Ct. App. 1991); cf. In re Interest of T.C., 492 N.W.2d 

425, 428–29 (Iowa 1992) (finding father was not denied his due process 

rights at child-in-need-of-assistance (CINA) adjudicatory hearing due to 

fact that father was in county jail at time of service of notice and CINA 

proceedings and that it was unlikely that court would have entered order 

different from what it did had the father been present). In both of these 

situations, one of the parties is often incarcerated, and it is commonly 

understood that a party who appears through counsel will not be held to 

be in default.

Also, a rule that required a party to appear personally for trial 

would be inscrutable in its application to a party who is not a person but 

rather an entity. In Hawkeye Bank & Trust, we held that corporations in 

this state are generally required to appear only by lawyer. 463 N.W.2d at 

25. If the corporation itself is required to be present for trial, it is wholly 

unclear which person or persons would be required to appear on the 
13

corporation’s behalf. Clearly, a corporation represented by counsel 

would not be considered to be in default where no employees, officers, or 

shareholders showed up for trial. Cf. Kirk v. Madsen, 240 Iowa 532, 534, 

36 N.W.2d 757, 758 (Iowa 1949) (“All testimony is undisputed as [the 

defendant who owned the company . . .] was represented by counsel at 

the trial, failed to appear in person[,] and could not be found to be served 

with subpoena.”).

Numerous state appellate courts that have considered the issue 

now before us have interpreted their respective rules of civil procedure to 

allow a party to proceed to trial through counsel without actually being 

personally present. See, e.g., In re Interest of M.M., 708 So. 2d 990, 992 

(Fla. Dist. Ct. App. 1998) (holding the entry of default judgment against 

parents in termination proceeding for failing to appear was improper 

because the parents appeared through their counsel); Owen v. Healy,

896 A.2d 965, 967–68 (Me. 2006) (“Evidence of a party’s unexplained 

failure to appear in person . . . does not justify a default that avoids trial 

where, as here, the missing party is represented by counsel at the trial.”); 

Rocky Produce, Inc. v. Frontera, 449 N.W.2d 916, 917 (Mich. Ct. App. 

1989) (reversing default judgment based on civil defendant’s failure to 

appear personally at trial because, “absent a subpoena or order from the 

court to appear, a defendant in a civil case is not required to appear in 

person for a scheduled trial”); Croes v. Handlos, 30 N.W.2d 471, 472 

(Minn. 1948) (“Of course, a defendant may appear and answer 

personally, but he must do so either personally or by counsel.”); Ogawa 

v. Ogawa, 221 P.3d 699, 707 (Nev. 2009) (where a party “appeared at the 

divorce hearing through counsel . . . the district court erred in entering 

the default against him”); N.J. Div. of Youth & Family Servs. v. P.W.R.,

983 A.2d 598, 600 (N.J. Super. Ct. App. Div. 2009) (holding that it was 
14

improper for trial court to enter default against stepmother based on 

failure to appear personally at child abuse fact-finding hearing where her 

attorney appeared to represent her interests), rev’d on other grounds, 11 

A.3d 844, 847 (N.J. 2011) (noting that lower appellate court “panel 

concluded, rightfully, that the default was improper”); In re Brandon A.,

769 A.2d 586, 589 (R.I. 2001) (“defin[ing] an appearance as [a] coming 

into court as party to a suit, either in person or by attorney” and holding 

that the “Family Court justice’s entry of default against respondent who 

was represented by counsel was clearly erroneous” (citation and internal 

quotation marks omitted)); LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 

(Tex. 1989) (holding there was no default in divorce action because party 

who did not appear personally was represented by counsel at trial). 

While none of these jurisdictions have a default judgment provision 

identical to rule 1.971(3), we find this body of persuasive authority 

instructive.

The preceding precedents demonstrate that when a party and the 

party’s representative fail to appear for trial, the decision to grant or deny 

a motion for default judgment under rule 1.971(3) rests within the sound 

discretion of the trial court. See Wilson, 666 N.W.2d at 165; Krugman, 

422 N.W.2d at 473–74. However, we do not interpret rule 1.971(3) to 

permit the entry of a default judgment against a party who fails to appear 

personally for trial when the party’s attorney is present and able to 

proceed in the party’s absence. Unless subject to a subpoena or court 

order, a plaintiff in a civil trial is not obligated to take the stand. Thus, 

there is no reason why a plaintiff in a civil trial should be required to 

appear personally when his or her presence is not “reasonably 

necessary.” See Myers, 476 N.W.2d at 85 (allowing civil trial to proceed 

through counsel where presence of incarcerated plaintiff was not 
15

“reasonably necessary”); see also Rollins v. Coggshall, 29 Iowa 510, 511 

(1870) (“A default can only be taken against one who has failed to comply 

with some rule or order of the court.”).

Through counsel, Jack could have advanced his claim based 

entirely on admissions by Crooked Creek which were already in the 

record. See White v. Walstrom, 254 Iowa 646, 650, 118 N.W.2d 578, 581 

(1962) (“[P]laintiff can make his whole case on defendant’s deposition if 

he so desires. He could always prove his case by statements of 

defendant made out of court . . . .”). In this case, Jack would also have 

been entitled to rely on the presumptions contained in Iowa Code section 

87.21 in the prosecution of his claim. Under these circumstances, Jack 

was able to take the next step required in the progress of the lawsuit, 

and thus, was not in default. Kirby, 238 Iowa at 374, 25 N.W.2d at 674.

It was well within the discretion of the district court to decline to 

grant a seventh continuance in a case that had been on file for over four 

years. Hawkeye Bank & Trust, 463 N.W.2d at 26 (“Given the broad 

discretion vested in district courts to grant or deny continuances, we will 

reverse only when that discretion is abused.”). However, we find that the 

court’s entry of a default judgment dismissing Jack’s case was based on 

an erroneous interpretation of rule 1.971(3). We believe our 

interpretation of rule 1.971(3) is consistent with our general policy in this 

jurisdiction “ ‘to allow a determination of controversies on their merits 

rather than on the basis of nonprejudicial inadvertence or mistake.’ ” 

Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999) 

(quoting Whitehorn v. Lovik, 398 N.W.2d 851, 853 (Iowa 1987)); Paige v. 

City of Chariton, 252 N.W.2d 433, 437 (Iowa 1977); Wharff v. Iowa 

Methodist Hosp., 219 N.W.2d 18, 21 (Iowa 1974) (“The general policy in 

this jurisdiction has been to allow trial on the merits.”); Sawyer v. 
16

Sawyer, 261 Iowa 112, 117, 152 N.W.2d 605, 608 (1967) (“[T]rials upon 

the merits are favored and defaults avoided if fairly possible.”); see also 

McQuillen v. City of Sioux City, 306 N.W.2d 789, 791 (Iowa 1981) (“[T]he 

drastic action of dismissal should not be ordered in the absence of 

willfulness, bad faith or fault.”).

B. Crooked Creek’s Right to Cross-Examine Jack. Crooked 

Creek concedes that Jack had made a prima facie case on his negligence 

claim but contends that it was entitled to rebut the presumption of 

negligence established under section 87.21 by cross-examining Jack at 

trial. The court of appeals “agree[d] with Crooked Creek that despite 

Jack’s ability to establish a prima facie case under section 87.21, his 

absence precluded [Crooked Creek] from cross-examining him, which is 

essential to a fair trial.” For this proposition, the court cited our decision 

in Avery v. Harms Implement Co., which states, “While the scope of crossexamination is discretionary, the right to do so is absolute. It is a right 

essential to a fair trial.” 270 N.W.2d 646, 650 (Iowa 1978).

However, in the second subsequent sentence in the Avery decision, 

we also stated, “Under our rules, cross-examination is limited to matters 

testified to in chief.” Id. Because the proposition below was to proceed 

in Jack’s absence, Jack would not have testified in his case-in-chief and 

would not have been subject to cross-examination. See Heinz v. 

Heinz, 653 N.W.2d 334, 342 (Iowa 2002) (“The purpose of crossexamination is to test the veracity of statements a witness made . . . .”). 

A party is not denied a fair trial by the denial of the opportunity to crossexamine a witness who does not give any testimony. The very definition 

of cross-examination requires that the witness first be examined on 

direct.
17

Crooked Creek cannot complain that it would have been deprived a 

fair trial because of the failure of one of the opposing parties’ designated 

witnesses to appear for trial. Crooked Creek may have been entitled to 

examine Jack had they subpoenaed him in accordance with Iowa Rule of 

Civil Procedure 1.1701(1)(a)(3).7 However, Crooked Creek did not 

subpoena Jack and was required to resort to other evidence to rebut the 

presumption of negligence arising under section 87.21.8 If a party 

wishes to assure the availability of an opposing party to be called as a 

 7Because Jack is a party, rule 1.1701(4)(d)(1)(2), which permits the quashing or 

modification of a subpoena requiring a nonparty “to travel more than 50 miles from 

where that person resides,” would have been inapplicable.

8Rule 1.707 governing notice for oral depositions demonstrates that if the 

drafters of rule 1.971(3) intended to allow a party to compel an opposing party to testify 

at trial without obtaining a subpoena, they certainly knew how to do so. Rule 1.707(4) 

provides:

No subpoena is necessary to require the appearance of a party for 

a deposition. Service on the party or the party’s attorney of record of 

notice of the taking of the deposition of the party or of an officer, partner 

or managing agent of any party who is not a natural person, as provided 

in rule 1.707(1), is sufficient to require the appearance of a deponent for 

the deposition.

The first sentence of rule 1.707(4) is similar to rule 1.971(3) in that the term 

“party” is undefined. However, unlike 1.971(3), it is clear from this rule that the party 

himself must personally appear, and the party’s attorney cannot appear at depositions 

on his behalf.

Firstly, the rule implicitly distinguishes between the party and the party’s 

attorney by stating service of notice “on the party or the party’s attorney” of the “taking 

of the deposition of the party . . . is sufficient to require appearance.” Iowa R. Civ. P. 

1.707(4). By juxtaposing the phrase “[s]ervice on the party or the party’s attorney” with 

the phrase “taking of the deposition of the party,” the rule forecloses an interpretation 

that would permit a party’s attorney to appear on his behalf for depositions. Instead, it 

is clear that the deposition of an opposing party himself may occur after he or his 

attorney is served with notice.

Secondly, common sense dictates that a party’s attorney cannot appear on his 

or her behalf for a deposition and the party being deposed must personally appear. 

Unlike trial, the only thing that occurs at the deposition of a party is the giving of that 

party’s testimony. Clearly, an attorney cannot testify on behalf of his or her client. 

However, as discussed above, there are numerous instances where it is understood that 

an attorney may advance a client’s claims at trial notwithstanding the party’s physical 

absence.
18

witness, or the availability of any witness for that matter, the appropriate 

procedure to compel the attendance of a witness must be employed.

IV. Conclusion.

The district court did not abuse its discretion when it denied 

Jack’s motion to continue the trial. However, the district court’s decision 

to enter a default judgment against Jack rested on an erroneous 

interpretation of rule 1.971(3). Because rule 1.971(3) does not require a 

party to appear personally for trial, it was an abuse of discretion to enter 

a default judgment against Jack when his counsel was present and able 

to proceed to trial on his behalf.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED.