(dissenting).
I respectfully dissent from the majority opinion.
I would dismiss the appeal by plaintiff, from a judgment in favor of defendants on their counterclaim, as not being timely filed under our present rules of appellate procedure.
I. Procedural facts. Final judgment in favor of defendants on their counterclaim *523was entered on June 19, 1984. On June 29 plaintiff timely filed a motion for new trial. Iowa R.Civ.P. 244, 247. On August 6, plaintiff filed a notice of appeal before the district court had ruled on plaintiffs motion for new trial.
II. Applicable rules and cases concerning timeliness of appeal. Iowa Rule of Appellate Procedure 5(a) provides in relevant part:
[A]ppeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment or decree, unless a motion for new trial ... or a motion as provided in R.C.P. 179‘b’, is filed, and then within thirty days after the entry of the ruling on such motion....
(Emphasis added.)
Thus, as applicable here, rule 5(a) provides that an appeal is timely only if it is taken within thirty days after 1) the entry of judgment, or 2) the entry of the ruling on the post-trial motion for new trial, whichever is later.
Here, however, for reasons best known to plaintiff, she decided not to wait for the district court’s ruling on her motion for new trial. Instead, plaintiff filed a notice of appeal.
We dismissed as untimely an appeal, where the notice of appeal was filed by a party after having filed an Iowa Rule of Civil Procedure 179(b) motion but without waiting for a ruling on that motion, in Recker v. Gustafson, 271 N.W.2d 738 (Iowa 1978). We said:
We deem application for post-trial relief, such as applications under rule 179(b), to be waived and abandoned when the moving party files a notice of appeal. In re Marriage of Novak, 220 N.W.2d 592, 596 (Iowa 1974); Kent Feeds, Inc. v. Stanwood Feed & Grain Co., 186 N.W.2d 593, 597 (Iowa 1971); Pedersen v. Thom, 258 Iowa 250, 252, 137 N.W.2d 588, 589 (1965); State v. Johnson, 257 Iowa 1052, 1063, 135 N.W.2d 518, 525 (1965).
Id. at 739.
The holding and language from Recker concerning an abandoned rule 179(b) motion applies equally to an Iowa Rule of Civil Procedure 244 motion for new trial for the purposes of Iowa Rule of Appellate Procedure 5(a). We stated as much in Hulsing v. Iowa National Mutual Insurance Co., 329 N.W.2d 5, 6 (Iowa 1983):
Plaintiff’s motion to vacate the judgment and for a new trial was filed on January 23,1981. Before any ruling was made, plaintiff filed his notice of appeal. This operated as a waiver of his motion. Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978).
(Emphasis added.)
The result from these cases is that time for appeal in the present case cannot be counted, under the second alternative present in rule 5(a), from the date of ruling on plaintiff’s post-trial motion because, in substance, the motion no longer had legal significance and no ruling validly could be made on it.
This, then, under Iowa Rule of Appellate Procedure 5(a) leaves only June 19, the date the judgment was entered, from which to count the thirty days for taking an appeal. Plaintiff’s appeal was filed August 6 and, thus, was untimely taken.
Accordingly, plaintiff’s appeal should be dismissed. I would not reach the merits of plaintiff’s appeal.
III. The effect of the majority opinion. Without specifically stating it, the majority opinion would amend or read into Iowa Rule of Appellate Procedure 5(a) a third alternative time by which an appeal would be timely taken. The three times then would be 1) thirty days after entry of judgment, 2) thirty days after entry of ruling on the post-trial motion, or 3) at any time upon filing a notice of appeal after a timely post-trial motion but before ruling on the motion. This third alternative simply does not exist in the present text of rule 5(a).
The solution of the majority to assist counsel for this plaintiff is commendable, but it is not consistent with, or contained in, rule 5(a) or our prior cases interpreting the rule.
*524In effect, the majority impliedly has amended rule 5(a) and overruled our prior cases without specifically saying so.
If the court desires to amend rule 5(a) to encompass a third alternative for a timely appeal, it should be done by amending the rule in usual manner and not by an abrupt holding that is contrary to rule 5(a), as in the present case.
For these reasons, I would dismiss this appeal as untimely.
REYNOLDSON, C.J., joins this dissent.