Bannister v. McIntire

• Decision Date: 22 December 1900
• Citation: 84 N.W. 707,112 Iowa 600
• Parties: LAVINA BANNISTER, Executrix of the Estate of DWIGHT BANNISTER, Deceased, AND J. M. RANSIER v. CLARA V. MCINTIRE, Administratrix of Estate of JOHN W. MCINTIRE, Deceased, Appellants
• Court: Iowa Supreme Court

84 N.W. 707

112 Iowa 600

LAVINA BANNISTER, Executrix of the Estate of DWIGHT BANNISTER, Deceased, AND J. M. RANSIER v. CLARA V. MCINTIRE, Administratrix of Estate of JOHN W. MCINTIRE, Deceased, Appellants

Supreme Court of Iowa, Des Moines

December 22, 1900

Appeal from Wapello District Court.--HON. T. M. FEE, Judge.

THIS is an action to recover of a sheriff a sum of money deposited with him by the Wabash Railroad Company as damages due plaintiffs for a right of way of said railway, which had been secured by condemnation proceedings across a lot belonging to said plaintiffs. The amount deposited was what had been awarded in the ad quod damnum proceedings. There was a directed verdict against John W. McIntire, and he appeals.

Affirmed.

W. W Cory for appellant.

McElroy & Heindell for appellees plaintiffs.

S. S Caruthers for appellee Wabash R. Co.

OPINION

WATERMAN, J.

Dwight Bannister, one of the plaintiffs, and John W. McIntire, who was sheriff of Wapello county, and who is the principal defendant, were alive when this action was instituted. They have since died, and their representatives have been substituted. The action was originally brought against McIntire as sheriff on his official bond, and the sureties thereon were made parties defendant. Thereafter it was dismissed by plaintiffs as against the sureties, and proceeded to judgment only as against McIntire. The main facts are not in dispute. The plaintiffs were owners of a lot in the city of Ottumwa, across which, in December, 1892, a right of way was condemned by the Wabash Railroad Company. The award of damages made by the sheriff's jury was $ 380. Plaintiffs were not satisfied with the award. They claim to have taken an appeal to the district court, but as that fact is in dispute, and not necessary to a decision of the issues presented, we do not determine it. The railroad company on January 18, 1893, deposited the amount of the award with McIntire, the sheriff, took possession of the property, and constructed its road. This action was brought on December 24, 1896. Other facts will be set out in their proper connection in the course of the opinion.

I. On behalf of the defendant, it was moved that the Wabash Railroad Company be made a party to the suit, it being averred that, after the deposit of said money with defendant sheriff, he paid the same over to a lawfully authorized agent of said railroad company, and that, if he is called upon to respond to plaintiff's demands, he should have judgment over against the railroad company. This motion came on for hearing before Eichelberger, J., and was sustained by him. Thereafter, at a later term, the railroad company appeared, and asked that the order making it a party be set aside. This application was heard before Fee, J., who sustained it, and his order so made is set up as the first ground of complaint. It may be well, first to consider the merits of the order making the railroad company a party. This is a law action. The petition states a case against McIntire, sheriff, which could be fully determined without affecting the rights or liabilities of any other person than the original parties to the action. There was no call for the making of any other parties. Shambaugh v. Current, 111 Iowa 121, 82 N.W. 497. The fact, if it be such, that McIntire stood in the relation of surety to the railroad company, which was liable over to him, if he was called upon to pay plaintiff's demand, would not affect the question. Under our statutes, an action may be maintained against a surety alone, without joining his principal. Marshall County v. Knoll, 102 Iowa 573, 69 N.W. 1146.

But it is said that Judge Fee had no right, at a subsequent term and after the record had been signed, to revoke an order made by his associate on the bench. The order of Judge Eichelberger was made ex parte. The railroad company had no hearing in the matter. In legal effect, its application to revoke the order was nothing more than a request that the case be dismissed as against it. Clearly, it had a right to a hearing on such an application, and it could not be denied relief, if otherwise entitled thereto, merely because, if granted, the order of Judge Eichelberger would be set aside. In connection with the contention on appellant's part that the Wabash Railroad Company should have been retained as a...