Holdorf v. Miller

• Decision Date: 21 January 1936
• Docket Number: 43092.
• Citation: 264 N.W. 602,220 Iowa 1380
• Parties: HOLDORF et al. v. MILLER, Judge.
• Court: Iowa Supreme Court

264 N.W. 602

220 Iowa 1380

HOLDORF et al. v. MILLER, Judge.

No. 43092.

Supreme Court of Iowa.

January 21, 1936

Certiorari to District Court, Pottawattamie County; Ernest M. Miller Judge.

Proceedings in certiorari to review an order of the district court overruling a motion to strike exceptions to the report of a referee in an equity case for the foreclosure of a real estate mortgage. The motion was based on the ground that the exceptions were filed too late.

Writ annulled.

J. J Ferguson, of Council Bluffs, for petitioners.

W. D Evans, of Hampton, for respondents.

POWERS, Justice.

The executors of the estate of Charles Holdorf, deceased commenced, in the district court of Pottawattamie county at Avoca, two actions in equity, each for the foreclosure of a real estate mortgage executed by Oren C. Holdorf, a son of Charles Holdorf. The mortgages were on different pieces of land. The sum of $6,000 and interest was claimed to be due on one mortgage, and $3,000 and interest on the other. As a defendant, Oren C. Holdorf filed in each case a counterclaim setting up an indebtedness which he claimed was owing to him from the estate of his father, Charles Holdorf, on account of advancements made and support furnished. The counterclaim was the same in both cases. By agreement of parties, the cases were consolidated and referred to D. W. Stuart of Council Bluffs, as referee, for trial. On November 21, 1934, the referee filed his report. It found the counterclaim was established in the sum of $9,105.12, sufficient to pay the $6,000 mortgage and interest in full, and reduce amount due on the $3,000 mortgage to $1,544.88. The report further found that said balance unpaid on the $3,000 mortgage was not due until March 1, 1935; that the attempt to accelerate the due date on the ground of defendants' default was ineffectual because there was no default. On January 28, 1935, the plaintiff filed exceptions to this referee's report. The defendants thereafter filed a motion to strike the exceptions on the ground they were filed too late. There was a resistance based on the grounds which respondent urges here. A hearing was had and this motion was overruled. All the defendants in the foreclosure action joined and sued out of this court a writ of certiorari for a review of that ruling.

It is the claim of the petitioners that where the referee's report is filed in vacation, as in this case, that exceptions thereto, under the statute, must be filed within three days after the convening of the next term of court following the filing of the report. Reliance is placed on the holding of this court in Re Estate of Samuel Malvin, 93 Iowa 169, 61 N.W. 420, and State v. American Bonding & Casualty Co., 213 Iowa 200, 238 N.W. 726. Section 3749, Code, 1897, allowed three days for filing exceptions in certain cases. Section 11537 of Code 1924, and subsequent Codes, fixes the time at ten days. It appears that the next term of court at Avoca, following the filing of the report, convened on the 11th day of December, 1934. The exceptions were not filed until January 28th following.

Respondent contends (1) that the rule requiring exceptions to be taken is not applicable to equity cases, triable de novo on appeal; (2) that there was an agreement between counsel for additional time in which to file exceptions; and (3) that, in any event, the action of the trial court in ruling on the motion could be nothing more than mere error reviewable by appeal, and not an act beyond the court's jurisdiction or otherwise illegal so as to be reviewable by certiorari.

I.

The conclusion we have reached on the proposition that there was an agreement between counsel for additional time in which to file exceptions makes it unnecessary to consider other questions argued. Attorneys for both parties testified at the hearing. The dispute between them as to what happened is not very substantial. The first conversation between them was at the office of the clerk of the district court when the referee's report was filed. Referring to the parties in the foreclosure suits, the attorney for the plaintiff testified that he told the attorney for the defendants at the time the report was filed that the report was long, that it would take some time to go over it, and that he would like to have some time to study things over and file exceptions, that it might take several months, and that the attorney for the defendants replied that he could take all the time he wanted provided he accorded the same...