Drummond v. Irish

Decision Date09 October 1879
Citation52 Iowa 41,2 N.W. 622
PartiesREBECCA DRUMMOND, RESPONDENT, v. JAS. D. IRISH, APPELLANT.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Van Buren circuit court.

The plaintiff and defendant are the administrators of the estate of John Drummond, deceased. This action was commenced by the plaintiff to recover certain personal property of the estate which had been set off to her as the widow of said Drummond by the appraisers appointed by the court to appraise the property of said estate. She averred that the defendant wrongfully detained possession of said property so set off to her, because the heirs of said estate had served a notice upon defendant to the effect that plaintiff was not the lawful widow of said John Drummond. An answer was filed in the name of the defendant, in which it was alleged that plaintiff was not the lawful wife of said Drummond, and that at the time of her pretended marriage with him she had a husband living from whom she had not been divorced. It was further averred that at the time of the pretended marriage with Drummond he was of unsound mind and incapable of contracting marriage. After the answer was filed the plaintiff filed the affidavit of James D. Irish, the defendant, stating that he had not employed nor authorized any counsel to appear for him in said cause. The attorneys whose names were signed to the answer thereupon filed a statement in writing that they did not represent the defendant, James D. Irish; that he held the property as the administrator of the estate of John Drummond, deceased, and that they represented the heir of said decedent's estate, to-wit: M. V. Drummond, Jane McGaffey, Almira Hecker, William Drummond and Marritta Bickford. The court, against the objection of plaintiff, permitted the said answer to stand as the answer of said heirs. Upon this record the cause was tried by the court. It was found that the marriage of plaintiff and deceased was a valid marriage, and the property in question was awarded to the plaintiff as the widow of the deceased. The costs of the case were taxed to the estate. The defendant appealed from the judgment awarding the property to the plaintiff, and the plaintiff appeals from the judgment taxing the costs of the case against the estate.Work & Brown, for the plaintiff.

Trimble & Baldwin and Lea Beaman, for defendant.

ROTHROCK, J.

1. It appears from the evidence, and an agreement made by the parties, that plaintiff was married in due form to one W. P. Eaton, prior to her marriage with John Drummond, and that at the time of her marriage with Drummond Eaton was still living, and that he and the plaintiff had not been divorced, nor the bonds of matrimony existing between them severed by any judicial or other legal proceeding, and said Eaton is still living, and still undivorced from plaintiff. It further appears that at the time of the marriage of plaintiff with said Eaton he had a wife living, from whom he had not been divorced, and that said wife is still living, and not divorced from him, and that plaintiff never lived with said Eaton after she was married to him.

Section 2201 of the Code provides that ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT