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Rick v. Sprague12/9/2005
l shall be taken in any case, not originally tried as a small claim, where the amount in controversy, as shown by the pleadings, is less than $6000 unless the supreme court or a justice thereof certifies that the cause is one in which appeal should be allowed.
Iowa R. App. P. 6.3 (emphasis added). As the emphasized part of the rule states, we can certify that the appeal should be allowed.
However, the timeliness of any appeal so certified is governed by Iowa Rule of Appellate Procedure 6.5, which pertinently provides:
here an application to the supreme court or any justice thereof to . . . certify an appeal under rule . . . 6.3 is made within 30 days from the date of the ruling, decision, or judgment sought to be reviewed, any appeal . . . certified upon such application shall be deemed timely taken.
Iowa R. App. P. 6.5.
Rule 6.3 is jurisdictional; an appeal failing to satisfy the jurisdictional minimum must be dismissed. Hrbek v. State, 554 N.W.2d 895, 896 (Iowa 1996).
According to rules 6.3 and 6.5, an appeal failing to satisfy the jurisdictional amount can still be allowed. However, an application to certify the appeal must be made within thirty days from the date of the ruling, decision, or judgment sought to be reviewed. Additionally, this court or a justice of this court must certify that the cause is one in which appeal should be allowed. No such application was filed here. And of course no such certification was given. Therefore we have no jurisdiction to hear this appeal unless we treat the appeal as an application to certify the appeal under Iowa Rule of Appellate Procedure 6.304.
Rule 6.304 provides:
If any case is brought by appeal, by application to certify an appeal, certiorari, or discretionary review, and the appellate court is of the opinion that another of these remedies was the proper one, the case shall not be dismissed, but shall proceed as though the proper form of review had been sought. Any one of the foregoing remedies may under this rule be treated by the appellate court as the one it deems appropriate. Nothing in this rule shall operate to extend the time within which an appeal may be taken.
Iowa R. App. P. 6.304 (emphasis added). Therefore notwithstanding rules 6.3 and 6.5, rule 6.304 allows us to consider this appeal as an application to certify the appeal if we are of the opinion that such application was the proper remedy. And if we consider this appeal as an application to certify the appeal, we may grant the application and proceed as though such an application had been filed.
We note that the predecessor rule did not include an application to certify an appeal. See Iowa R. App. P. 6.304 (amended Nov. 9, 2001). The present rule was effective September 16, 2004, some nine months after the notice of appeal in this case was filed. Nevertheless, the present rule applies to this case because it is a procedural rule establishing a method for implementing jurisdiction to allow appeals in which the jurisdictional minimum has not been met. In addition, at the time the rule was passed it had no savings clause. In such circumstances, the new rule applies to all appeals pending as of its effective date. See Smith v. Korf, 302 N.W.2d 137, 139 (Iowa 1981). Because this appeal was pending as of the effective date of the new rule, the new rule applies.
Assuming without deciding that the jurisdictional minimum was not met in this case, we are of the opinion that an application to certify the appeal was the proper remedy. We certify that the cause is one in which appeal should be allowed. We therefore grant the application to certify the appeal, deny th
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