I dissent as I am unable to agree with Divisions III and IV of the majority opinion. The trial court’s order dismissing plaintiff’s case against defendant Suehomel under rule 215.1 should be affirmed.
*1215In Talbot v. Talbot, 255 Iowa 337, 122 N.W.2d 456, the clerk gave notice as required by rule 215.1 and the case was assigned for trial during the October Term but was not tried. We reversed the trial court’s denial of defendant’s motion made after the end of the October Term. At page 341, 255 Iowa, page 459, 122 N.W.2d, we say:
“Thus the case was still for trial when the term ended November 18, 1962, and became subject to dismissal under the rule when the following term commenced.
“As provided in rule 215.1, unless a cause noted for trial by the clerk is tried or continued, it must be dismissed at the next term of said court and the trial court has no discretion in the matter. Windus v. Great Plains Gas, supra, 254 Iowa 114, 123, 116 N.W.2d 410, 415.”
The case against Suehomel was not tried or continued during the January Term and therefore the court had no discretion in the matter and properly dismissed it.
In Gammel v. Perry, 256 Iowa 1129, 130 N.W.2d 550, we affirm dismissal of plaintiff’s case under rule 215.1 when plaintiff believed the case had been removed from the assignment by the trial court.
At page 1133, 256 Iowa, page 552, 130 N.W.2d, we say: “From the second Windus ease, supra, at pages 592, 593 of 255 Iowa, page 904 of 122 N.W.2d, and the rule itself, the alternatives are 1, assigned and tried, 2, dismissal without prejudice and 3, continued upon showing of satisfactory reasons for want of prosecution or grounds for continuance by application and ruling thereon after notice and not ex parte.”
Filing a certificate of readiness or even assignment of the case for trial does not relieve a plaintiff of the requirement for an application for a continuance.
Plaintiff’s ease against Suehomel was not tried, voluntarily dismissed or continued on plaintiff’s motion. Assigning the case for trial after the expiration of the term does not comply with the rule stated in Gammel v. Perry, supra.
The facts in McKinney v. Hirstine, 257 Iowa 395, 131 N.W. 2d 823, are on all fours with those in the case at bar. There the ease was noted for trial under rule 215.1, continued on proper *1216motion to January 1964 Term and not tried or continued during that term.- We reversed the trial court for refusing to dismiss plaintiff’s ease after the expiration of the January Term. At page 399 of 257 Iowa, page;826 of 131 N.W.2d, we say:
“The operation of rule 215.1 is mandatory and automatic: That is, after the ‘try or dismiss’ term, as extended by the continuance had expired, the defendants were entitled to a judgment of dismissal without prejudice as a matter of right. The court had no discretion as to dismissing or not dismissing. Talbot v. Talbot, 255 Iowa 337, 341, 122 N.W.2d 456, 459. The rule is clearly stated in G-ammel v. Perry, 256 Iowa 1129, 1134, 130 N.W.2d 550, 55.3. The court was in error in denying defendants’ motions. They should have been granted, and the cause is reversed and remanded for that purpose.” -
Under our well established rules as stated in the above cited cases the trial court’s ruling should be affirmed. Assignment of the case during the April Term did not revive plaintiff’s case against Suchomel.
I would affirm.
Larson1, Thornton and Rawlings, JJ., join in this dissent.