IN THE SUPREME COURT OF IOWA 

No. 50 / 05-0179 

Filed May 19, 2006 

IN THE INTEREST OF 

M.T., M.T., AND T.B., 

Minor Children. 

Appeal from the Iowa District Court for Woodbury County, Brian L. 

Michaelson, Judge. 

Appeal from district court order allowing tribe to intervene pursuant 

to the Iowa Indian Child Welfare Act in child-in-need-of-assistance action. 

APPEAL DISMISSED. 

Michelle M. Dreibelbis, Sioux City, for appellants, minor children. 

Thomas S. Mullin, County Attorney, and David A. Dawson, Assistant 

County Attorney, for appellants, State of Iowa and Woodbury County 

Attorney. 

Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant 

Attorney General, for appellee, Iowa Department of Human Services. 

Martha M. McMinn, Sioux City, for appellee, The Winnebago Tribe of 

Nebraska. 
Jeffrey S. Rasmussen of Olson, Allen & Rasmussen, L.L.C., 

Bloomington, Minnesota, Thomas D. Grabinski of Grinnell, and Wilford 

Stone of Lynch Dallas, P.C., Cedar Rapids, for amicus curiae, The Sac & 

Fox Tribe of the Mississippi in Iowa. 

Molly Vakulskas-Joly, Sioux City, for the father of M.T. and M.T. 

H. Allan Sturgeon, Sioux City, for the mother of the minor children. 
 3 

TERNUS, Justice.

The district court allowed The Winnebago Tribe of Nebraska to 

intervene in this child-in-need-of-assistance action. The children’s attorney 

and the Woodbury County Attorney challenge this ruling, claiming the Iowa 

Indian Child Welfare Act, under which the court authorized the tribe’s 

intervention, is unconstitutional. We do not reach this issue, however, 

because we are compelled to conclude the appeal must be dismissed on 

jurisdictional grounds. 

I. Background Facts and Proceedings.

The county attorney commenced this proceeding under Iowa Code 

chapter 232, alleging the minor children, M.T., M.T., and T.B., were children 

in need of assistance and asking that their care, custody, and control be 

transferred to DHS for placement in family foster care. More than twelve 

months after The Winnebago Tribe of Nebraska was notified of this action, it 

sought to intervene pursuant to the Iowa Indian Child Welfare Act (“Iowa 

ICWA”). See Iowa Code § 232B.4(3) (Supp. 2003). Rejecting the 

constitutional challenges made to the Iowa ICWA by the children’s attorney 

and the county attorney, the district court permitted the tribe to become a 

party to the proceeding. After the children’s attorney’s and the county 

attorney’s motions to reconsider under Iowa Rule of Civil Procedure 1.904(2) 

were denied, these parties filed notices of appeal. 

At this point, the Iowa Attorney General filed a statement with the 

Iowa supreme court, claiming the county attorney had improperly asserted 

authority to appeal on the State’s behalf. The attorney general claimed, 

contrary to the position of the county attorney, that the Iowa ICWA could be 

defended against any constitutional challenge. Subsequently, the attorney 

general filed a motion to dismiss the appeal on the basis it was untimely. 

The attorney general claimed the appellants’ post-ruling motions were not 
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properly filed under rule 1.904(2) and so did not toll the time for appeal. 

Being unpersuaded by the county attorney’s resistance to the attorney 

general’s motion to dismiss, a three-justice panel of this court held the postruling motions did not toll the period for appealing and so dismissed the 

appeal. The dismissal order was filed on May 5, 2005, and procedendo was 

issued the next day on May 6, 2005, sending the matter back to the district 

court. 

On May 11, 2005, the county attorney filed a petition for rehearing in 

the supreme court, arguing the panel had erred in dismissing the appeal. 

On June 14, 2005, the panel set aside the dismissal and ordered the clerk 

of the supreme court to recall procedendo. The question of appellate 

jurisdiction was ordered to be submitted with the appeal. 

The attorney general subsequently filed a motion to vacate this court’s 

June 14, 2005 order, claiming the panel lacked authority to withdraw 

procedendo and reinstate the dismissed appeal. Alternatively, the attorney 

general claimed that even if the court had authority to recall procedendo, 

the circumstances of this case did not warrant the exercise of this 

extraordinary power. The county attorney responded that this court’s 

“jurisdiction did not cease when procedendo was quickly, but mistakenly, 

issued on May 6, 2005.” 

Although the parties dispute whether the county attorney or the 

attorney general properly represents the interests of the State in this 

appeal, we need not resolve this dispute prior to determining our 

jurisdiction in this matter. Questions concerning this court’s jurisdiction 

may be raised upon the court’s own motion. See River Excursions, Inc. v. 

City of Davenport, 359 N.W.2d 475, 477 (Iowa 1984) (“Even though neither 

party has questioned our jurisdiction to hear and decide this case, we will 

sua sponte dismiss an appeal that is neither authorized by our rules nor 
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permitted by court order.”); Budde v. City Dev. Bd., 276 N.W.2d 846, 849 

(Iowa 1979) (“Although petitioners moved to dismiss the appeal, we are 

obliged to do so even on our own motion when an appeal is not authorized 

by rule.”). Therefore, the attorney general’s standing to challenge our 

jurisdiction is irrelevant. Accordingly, we proceed directly to a 

consideration of the propriety of this court’s recall of procedendo and 

reinstatement of this appeal. 

II. Discussion. 

An appellate court must have some method of remanding a case to 

the lower court after the reviewing court has made its decision. See State v. 

Banning, 205 Iowa 826, 828, 218 N.W. 572, 574 (1928). In Iowa, remand is 

accomplished by the issuance of a procedendo. See State v. Henderson, 215 

Iowa 276, 278, 243 N.W. 289, 290 (1932) (“The bar and the courts of this 

state have uniformly referred to the order which goes from this court to the 

district court to proceed with the trial of a cause as a ‘procedendo.’ ”). See 

generally 62B Am. Jur. 2d Procedendo § 1, at 579 (2005) (“In some 

jurisdictions, the term ‘procedendo’ is used interchangeably with ‘remittitur’ 

and ‘mandate’ to denote the order issued by a court of review on the 

decision of a cause on appeal. . . .”). The issuance of procedendo is within 

the court’s inherent power.1 See Banning, 205 Iowa at 828, 218 N.W. at 

574. 

This court has adopted several appellate rules that address the 

issuance of procedendo. Iowa Rule of Appellate Procedure 6.30 states that 

no procedendo will issue “for 15 days after an opinion of the supreme court 

 1Although the supreme court has inherent power to issue a procedendo, this 

authority has been codified by the legislature for criminal cases and small claims actions. 

See Iowa Code § 814.24 (2005) (stating with respect to criminal appeals: “The decision of 

the appellate court with any opinion filed or judgment rendered must be recorded by its 

clerk. Procedendo shall be issued as provided in the rules of appellate procedure.”); id. § 

631.16(6) (setting forth same principles pertaining to discretionary review of small claims 

actions). 
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is filed, nor thereafter while a petition for rehearing, filed according to these 

rules, is pending.” Iowa R. App. P. 6.30. In contrast, procedendo must 

issue immediately when the court denies an application for further review or 

renders a decision in an abortion notification appeal. See Iowa Rs. App. P. 

6.402(6), 6.502(3). 

Once procedendo has issued, the jurisdiction of the supreme court 

ceases.2 See Henderson, 215 Iowa at 278, 243 N.W. at 290; Iowa Code § 

814.25 (providing in reference to criminal matters that “[t]he jurisdiction of 

the appellate court shall cease when procedendo is issued”); id. § 631.16(7) 

(setting forth same principle pertaining to discretionary review of small 

claims actions); see also Iowa R. App. P. 6.12(6) (stating in cases of 

voluntary dismissal of an appeal that “[t]he issuance of procedendo shall 

constitute a final adjudication with prejudice”). Indeed, the entire purpose 

of a procedendo is to notify the lower court that the case is transferred back 

to that court. See Banning, 205 Iowa at 829, 218 N.W. at 574. 

We have found no Iowa cases discussing the court’s power to recall 

procedendo or the parameters of such a power. Nonetheless, it appears this 

court has recalled procedendo in at least two documented cases. In Fenton 

v. Way, 44 Iowa 438 (1876), the defendant filed a petition for rehearing after 

this court had filed its opinion and issued procedendo. 44 Iowa at 438-39. 

The supreme court ordered that procedendo be returned and subsequently 

overruled the petition for rehearing. Id. at 439. This court’s recall of 

procedendo was not challenged or explained, but the facts showed the 

 2 Jurisdiction of a reviewing court may also end without the issuance of procedendo 

if the reviewing court has issued its decision, the time for rehearing has expired, and the 

lower court has resumed jurisdiction with all parties having notice. Henderson, 215 Iowa 

at 278, 243 N.W. at 290; Banning, 205 Iowa at 829, 218 N.W. at 574; Becker v. Becker, 50 

Iowa 139, 140-41 (1878). “Under such circumstances, we have held that by appearance 

the parties consent to the jurisdiction of the lower court, and thereby waive the filing of a 

procedendo.” Henderson, 215 Iowa at 278, 243 N.W. at 290. 
 7 

procedendo had issued prior to the expiration of the time for filing a petition 

for rehearing. Id. at 438. In Hasted v. Dodge, 39 N.W. 668 (1888), this 

court, on its own motion, ordered a rehearing after an opinion had been 

filed and procedendo had been issued. 39 N.W. at 668. It appears the 

court discovered a conflict between the filed opinion and a prior decision of 

the court. Id. It is not apparent from the opinion whether the time for 

rehearing had expired at the time the court ordered a rehearing on its own 

accord. Because the court’s withdrawal of procedendo was not challenged 

in Fenton or Hasted, these decisions provide little assistance in the present 

appeal. Therefore, we turn for guidance to the general principles followed 

by other courts with respect to the recall of procedendo, mandate, or 

remittitur. 

It is widely recognized that an appellate court has inherent power to 

recall a procedendo. See Haw. Hous. Auth. v. Midkiff, 463 U.S. 1323, 1324, 

104 S. Ct. 7, 8, 77 L. Ed. 2d 1426, 1428 (Rehnquist, Circuit Justice, 9th 

Cir. 1983); Nelson v. James, 722 F.2d 207, 208 (5th Cir. 1984); Greater 

Boston Television Corp. v. FCC, 463 F.2d 268, 277 (D.C. Cir. 1971); 5 Am. 

Jur. 2d Appellate Review §§ 797, 798, at 463 (1995). Nonetheless, due to 

the strong interest in finality of judgments, the power of recall is considered 

an extraordinary remedy to be used sparingly and only to prevent injustice. 

See Nelson, 722 F.2d at 208; Powers v. Bethlehem Steel Corp., 483 F.2d 963, 

964 (1st Cir. 1973); Greater Boston Television Corp., 463 F.2d at 277-78; 5 

Am. Jur. 2d Appellate Review § 798, at 463. “The clearest reason for recall 

or revision of appellate mandate is . . . to correct clerical mistakes or to 

make the judgment consistent with the opinion.” Greater Boston Television 

Corp., 463 F.2d at 278 (footnote omitted); accord 5 Am. Jur. 2d Appellate 

Review §§ 800, 801, at 465. A recall of procedendo is also appropriate to 

protect judicial integrity. See Greater Boston Television Corp., 463 F.2d at 
 8 

278; 5 Am. Jur. 2d Appellate Review § 803, at 465-66. “Thus, a mandate 

may be set aside if it was procured by fraud on the court.” 5 Am. Jur. 2d 

Appellate Review § 803, at 466; accord Greater Boston Television Corp., 463 

F.2d at 278. On the other hand, “[a]lleged erroneous rulings of law are 

generally not held to be sufficiently unconscionable to justify [the recall of 

procedendo].” Powers, 483 F.2d at 964; accord State v. Waddell, 254 N.W. 

627, 627 (Minn. 1934) (holding remittitur will not be recalled absent “some 

irregularity in connection with the remittitur”). 

Turning to the present appeal, we note the appellants have suggested 

two bases upon which procedendo was properly withdrawn: (1) procedendo 

was “mistakenly” issued by the clerk; and (2) our dismissal order was 

erroneous. Adhering to the principles set forth above, we conclude neither 

ground is sufficient to justify the recall of procedendo in this case. 

We first consider the argument that the supreme court clerk 

improvidently issued procedendo the day after our dismissal order was filed. 

The only rule requiring the clerk to delay the issuance of procedendo is rule 

6.30, which instructs the clerk not to issue procedendo for fifteen days after 

an “opinion” is filed or thereafter while a petition for rehearing is pending. 

Iowa R. App. P. 6.30. The fifteen-day delay is apparently intended to 

maintain jurisdiction in the supreme court during the fourteen-day period 

for filing a petition for rehearing. See Iowa R. App. P. 6.27(1) (allowing a 

party to file a petition for rehearing “within 14 days after the filing of an 

opinion by the supreme court”). Rule 6.30 has no application to the 

dismissal order of the three-justice panel in this case, however, because the 

dismissal order is not an opinion. It is clear from a review of this court’s 

procedural rules that an order that disposes of a motion is not considered 

an “opinion.” For example, Iowa Rule of Appellate Procedure 6.502, which 

concerns abortion notification appeals, states that the supreme court’s 
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“decision may be rendered by order or opinion.” Iowa R. App. P. 6.502(3) 

(emphasis added). In addition, Iowa Court Rule 21.25, a rule governing the 

organization and procedures of appellate courts, provides for the publishing 

of “[o]pinions of the supreme court” by West Publishing Company. Iowa R. 

App. P. 21.25. Clearly, this court does not forward orders rendered on 

motions to dismiss to West Publishing Company for inclusion in the 

Northwestern Reporter. The panel’s dismissal order in this appeal was not 

an opinion. Therefore, the clerk was not prohibited by rule 6.30 from 

promptly issuing procedendo. 

For the same reason, the appellants’ petition for rehearing of the 

panel’s dismissal order did not provide a basis to recall procedendo. 

Although the petition was purportedly filed under the authority of rule 6.27, 

that rule allows a party to file a petition for rehearing only after the filing of 

an “opinion.” Because the dismissal order was not an opinion, rule 6.27 did 

not authorize the appellants’ petition for rehearing. We have examined our 

rules of appellate procedure and conclude no provision is made for the 

review or rehearing of three-justice orders. Therefore, the present case is 

unlike the situation in Fenton when we recalled a procedendo issued before 

the time for rehearing had expired. Here, there was no period in which the 

appellants could ask for rehearing, and consequently, there was no 

irregularity in the immediate issuance of procedendo.3

Finally, we consider the appellants’ assertion that this court could 

properly recall procedendo in order to correct its allegedly erroneous 

dismissal order. Even if we assume our dismissal order was wrong, that 

fact would not provide a basis to recall procedendo. The importance of 

 3 The finality of a three-justice dismissal order is not unique under our rules. 

Abortion notification appeals are submitted to a three-justice panel, the panel’s decision is 

not subject to review or rehearing, and the clerk is instructed to promptly issue procedendo 

once an order or opinion is filed. Iowa R. App. P. 6.502(3). 
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finality in judgments constrains the exercise of our inherent power to recall 

procedendo and resubmit the appeal in the absence of an irregularity in the 

proceedings that affected the integrity or fairness of the court process. The 

only irregularity in the process suggested by the appellants is the clerk’s 

prompt issuance of procedendo. But as we have already discussed, the 

clerk’s action was entirely consistent with our appellate rules. Therefore, 

the appellants received the process to which they were entitled under our 

rules, procedendo was properly issued, and the dismissal is final. 

III. Disposition. 

Procedendo was improperly recalled in this matter because there was 

no factual or legal basis for the exercise of this extraordinary power. 

Accordingly, we vacate this court’s June 14, 2005 order recalling 

procedendo. The three-justice order dismissing the appeal stands as this 

court’s final decision. 

APPEAL DISMISSED. 

All justices concur except Carter, J., who dissents without opinion.