(dissenting).
I cannot agree with the reasoning or results reached in Divisions I and II of the majority opinion, therefore respectfully dissent as to same.
I. In Division I the majority concludes, trial court’s order holding defendants entitled to summary judgment is a final ap-pealable adjudication. As aforesaid I disagree.
Plaintiff instantly commenced a statutory law actions. Defendants’ motion for summary judgment was subsequently sustained by a “Ruling on Motion for Summary Judgment”. It states, in material part:
“Consequently, as there is no genuine issue of fact, as to any material fact and that defendant is entitled to judgment as a matter of law in their favor and against the plaintiff, defendants’ Motion for Summary Judgment must be and is hereby sustained.”
Noticeably no judgment was thereby granted nor was entry of judgment ordered. See 6 Loth on Iowa Rules of Civil Procedure, Forms, § 10.18 at 378-379 (2d ed.).
It is to me self-evident the foregoing order was nothing more than a finding that defendants were entitled to a summary judgment, i. e., an order which could have been changed, altered, modified or corrected by trial court prior to entry of judgment, both as to form and substance. It was therefore not final. Demonstrably no final judgment was ever entered pursuant to the aforesaid finding. See Iowa R.Civ. P. 227.
Resultantly plaintiff served notice of appeal from an interlocutory order absent requisite permission. See Iowa R.Civ.P. 332; Moreno v. Vietor, 261 Iowa 806, 810, 156 N.W.2d 305 (1968). See also LeRoy v. Figure Skating Club of Minneapolis, 281 Minn. 576, 162 N.W.2d 248 (1968); Gebeke v. Arthur Mercantile Company, 138 N.W.2d 796 (N.D.1965); cf. State v. Coughlin, 200 N.W.2d 525 (Iowa 1972); St. Joseph Hospital v. Peterson, 196 N.W. 2d 418, 420 (1972); Rosmann v. Lawler, 257 Iowa 1292, 1295, 136 N.W.2d 513 (1965).
Furthermore, this court said in Johnson v. Iowa State Highway Comm., 257 Iowa 810, 812, 134 N.W.2d 916, 917-918 (1965):
“The right to appeal is statutory and in civil cases is governed by the Iowa Rules of Civil Procedure which have the force and effect of statute. Rule 331 provides for two classes of appeals.
“‘(a) All final judgments and decisions * * * may be appealed * *
‘“(b) No interlocutory ruling or decision may be appealed, except as provided in rule 332, until after the final judgment or order. * * *.’
“Rule 332(a) states: 'Any party aggrieved by an interlocutory ruling or decision * * * may apply to the supreme court or any justice thereof to grant an appeal in advance of final judgment. * *
“We have consistently held we have no jurisdiction to entertain an appeal where no final judgment was entered and no permission to appeal from any *618ruling less than a final judgment or decision was obtained. (Authorities cited).” (Emphasis supplied).
Cf. Culligan Soft Water Service v. Berglund, 259 Iowa 660, 663, 145 N.W.2d 604, 606 (1966); McCoy v. Totten, 259 Iowa 699, 701, 145 N.W.2d 662, 663 (1966).
And it is of no significance that defendants have not here moved for a dismissal. As the majority concedes, it is for us to refuse, on our own initiative, any attempted appeal not authorized by rule. See Harden v. Illinois Central R. Co., 254 Iowa 426, 429, 118 N.W.2d 76, 78 (1962). See also Metron Steel Corp. v. Alby Mfg., Inc., 54 Wis.2d 67, 194 N.W.2d 608, 610 (1972).
I would therefore dismiss this appeal.
II. Furthermore, had final judgment been entered in this case I would affirm trial court with regard to plaintiff’s Code Chapter 613A action against defendant Brunner.
The motion for summary judgment now before us was predicated on plaintiff’s failure to give notice of his claim pursuant to The Code 1971, Chapter 613A. Plaintiff contends this statutory enactment is not applicable to his claim against defendant Brunner. Trial court disagreed and sustained plaintiff’s summary judgment motion.
Subsequent to the docketing of this appeal the opinion in Vermeer v. Sneller, 190 N.W.2d 389 (Iowa 1971) was filed. That case involved a student’s action against a teacher and her employer school district. Trial court there held the notice provisions of Chapter 613A applied to claims made against municipal employees. This court, in reversing concluded, 190 N.W.2d at 392: “The notice of claim requirements of § 613A.5, Code, 1971, do not apply to an employee of a municipality when that employee is sued in his individual capacity for his negligent acts.”
Such conclusion had limited impact when applied to the cited 'case since this court found there had been substantial compliance with the notice provisions as to defendant school district. But the effect thereof as applied by the majority in the case at bar, is to judicially repeal the notice provisions of Chapter 613A. I cannot believe the legislature meant, by Chapter 613A, the notice provisions thereof may be ignored by making a municipality secondarily liable under the indemnity provisions of the act when it is not primarily obligated.
Stated otherwise, the general assembly could not have intended a municipality be required to pay from the left pocket that which it could not be lawfully required to pay from the right pocket. See Boyle v. Burt, 179 N.W.2d 513, 516 (Iowa 1970); White v. Johnson, 272 Minn. 363, 137 N. W.2d 674, 676-677 (1965).
In the present case plaintiff unquestionably sued defendant Brunner as an employee of defendant municipal hospital for acts performed in the scope of her employment. Plaintiff, in his resistance to a motion to dismiss and again by resistance to the instant motion for summary judgment, admitted defendant hospital would be required to indemnify and save Brunner harmless against plaintiff’s claim by reason of § 613A.8.
Trial court properly found plaintiff’s action was instituted pursuant to Chapter 613A and he was thereby bound, although redress could have been sought by an action at common law. The court’s comments in this regard are worth repeating since they pinpoint the fallacy in permitting plaintiff to adopt a two-way approach :
“It is manifest to this court that plaintiff brings his suit relying upon the provisions of Chapter 405 of the 62nd G.A. (Code Chapter 613A). His theory seems to be that even if the suit be dismissed against the ‘municipality’, he is entitled to maintain the suit against the employee, Frances Brunner, who would be held harmless by the municipality under *619the provisions of Section 8 of said chapter. Plaintiff argues that his suit against the employee is not to be limited by the notice requirements of Chapter 405, and that the municipality is still to be required to hold the employee harmless under the provisions of Section 8 of said Chapter, so long as plaintiff brings his suit within two years from the date of his injury (or the date when he discovered that he has suffered injury or by the exercise of reasonable diligence should have discovered it).
“It may well be that plaintiff could have sued Frances Brunner without relying on Chapter 405 of the 62nd G.A. and in such situation the two year limitation for bringing of the action would apply. The situation would then be the ordinary cause for personal injuries with no claim being made that a ‘municipality’ hold defendant harmless or indemnify him. Here, however, plaintiff relies on the provisions of Chapter 405 of the 62nd G.A. to hold a unit of local government either primarily liable or liable secondarily in holding the employee harmless from the consequences of an alleged tort committed in the scope of her employment. Plaintiff need not bring his suit against Frances Brunner relying on relief provided in Chapter 405, but if he does rely on the provisions of said chapter he must comply with its provisions for bringing his suit.”
The foregoing analysis is to be correct and the conclusion thus reached should here be adopted. Otherwise there will rarely if ever be a claim against a municipality which does not arise out of an employee’s act, thereby permitting all claimants to ignore the notice provisions of Chapter 613A, thus effecting an indirect recovery from a municipality under the aforesaid indemnity proviso. If the general assembly had any such intention it could have so stated. This it did not do.
In Bruce v. Wookey, 261 Iowa 231, 233, 154 N.W.2d 93, 94 (1967), this court said:
“In seeking the meaning of a law the entire act should be considered. Each section must be construed with the act as a whole and all parts of the act considered, compared and construed together.”
We then proceeded to hold a failure to comply with the new Probate Code requirement regarding hearings on claims served, in effect, to bar the claim even though this might not have been the way the court would have written the law had it been acting in place of the legislature. The same reasoning should be applied to Chapter 613A.
And in Dobrovolny v. Reinhardt, 173 N. W.2d 837, 840 (Iowa 1970) is this apt statement:
“In construing a statute, it is important to consider the state of the law before it was enacted and the evil it was designed to remedy, and it is the business of courts to so construe an act as to suppress the mischief and advance the remedy. In arriving at the intention of the legislature, the subject matter, effect, consequence, and the reason and spirit of the statute must be considered, as well as words, in interpreting and construing it.”
See also Bennett v. Ida County, 203 N.W.2d 228 (Iowa 1972); Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970); Boyle v. Burt, 179 N.W.2d at 516-517.
Furthermore, a reading of Vermeer, Iowa, 190 N.W.2d at 391-392, reveals the primary basis for the conclusion there réached would, in effect, serve to abolish plaintiff’s common law right of action against the employee. I cannot agree with that rationale. A number of states have statutes requiring notice be given as a prerequisite to bringing an action against a municipal employee. See Huffaker v. Decker, 77 Cal.App.2d 383, 175 P.2d 254, 255-257 (1946), followed in Rounds v. Brown, 121 Cal.App.2d 642, 263 P.2d 620 (1953) and Chavez v. Sprague, 209 Cal. App.2d 101, 25 Cal.Rptr. 603 (1962); Rein*620hardt v. City of New Haven, 23 Conn.Sup. 321, 182 A.2d925 (1961).
In Htiffaker, supra, the court was confronted with an argument to the effect such notice requirement abolished a common law right of action. But the court said, 175 P.2d at 257:
“It should be noted that the statute does not deprive the injured person of his cause of action against the employee. That remains as it was before the statute was enacted. He is not denied due process. * * * The statute merely places upon him a reasonable procedural requirement to the maintenance of his action.”
Even more to the point is this statement in Harvey v. Prall, 250 Iowa 1111, 1121, 97 N.W.2d 306 (1959): “ * * * a statute will not be construed as taking away a common-law right existing at the date of its enactment unless that result is imperatively required.” Accord, Hardwick v. Bublitz, 253 Iowa 49, 59, 111 N.W.2d 309 (1961); The Maytag Co. v. Alward, 253 Iowa 455, 462, 112 N.W.2d 654 (1962). I submit the abolishing of any existing common law right of action against municipal employees was not mandated by enactment of Code Chapter 613A.
As stated in 4 McOuillm Municipal Corporations, § 12.211, at 151 (3d ed., 1968 Rev.):
“Generally speaking, a plaintiff can bring two types of actions for tort against public officers or employees: (1) he can sue them in their private and individual capacity; (2) he can sue them in their official capacity as municipal officers or employees.”
Having elected to seek recovery via the second type of action plaintiff still seeks to hold the municipality liable absent any compliance with the notice provisions of Chapter 613A. This should not be allowed. By holding otherwise it is to be apparent the majority judicially abolishes governmental immunity regardless of any statutory notice requirements. But see Bennett v. Ida County and Sprung v. Rasmussen, both supra. I submit we should not so extend the Vermeer rule that it be made applicable to statutory actions brought against an individual as an employee of a municipality for acts performed within the scope of his employment, i. e., in such manner as to accord a plaintiff an improper benefit of the Chapter 613A indemnity provisions.
I would dismiss this appeal, and in any event would affirm.
LeGRAND, J., joins Division II of this dissent.