Boone v. Boone

• Decision Date: 25 October 1912
• Citation: Boone v. Boone, 160 Iowa 284, 137 N.W. 1059 (Iowa 1912)
• Parties: BOONE v. BOONE ET AL. (TWO CASES).
• Court: Iowa Supreme Court

160 Iowa 284

137 N.W. 1059

BOONE

v.BOONE ET AL. (TWO CASES).

Supreme Court of Iowa.

Oct. 25, 1912.

Appeal from District Court, Dallas County; W. H. Fahey, Judge.

The opinion states the case. Affirmed.Parsons & Mills, of Des Moines, and Burton Russel, of Adel, for appellant.

Clarke & White, of Adel, for appellees.

WEAVER, J.

The two actions consolidated herein were each instituted for the partition of the same lands. All parties claim under the will of Joshua Boone, deceased. There is no dispute whatever as to the interests or shares of the several parties. The simple controversy in the court below was over the question which action was first instituted; the defendants in each instance pleading in abatement the pending of another suit. The cases were consolidated for trial. Upon hearing all the testimony a decree for the partition of the lands was enteredin the case last above entitled. It was further ordered that the action first above entitled be abated and dismissed and judgment therein be rendered against the plaintiff for costs in the sum of $156.45. John W. Boone has appealed from that decree, or that part thereof which he specifies in his notice to be “the final decree and judgment in the district court abating and dismissing plaintiff's action.”

[1] In this court the appellees have filed a motion to dismiss the appeal on the ground that since the rendition of the judgment below plaintiff has voluntarily complied therewith by paying and discharging the judgment entered against him. In support of this motion a transcript of the record in said cause is submitted, showing that on January 15, 1912, the plaintiff, John W. Boone, paid to the clerk the sum of $156.45, “in full satisfaction of this judgment for costs.” Appellant admits his payment of the costs, but resists this motion to dismiss because: First, the payment of costs in an action begun by himself is in no sense a performance of or acquiescence in the judgment appealed from; and, second, that under our statute (Code, §§ 4113, 4114) an appeal may be taken from one part of a decree while submitting to other parts thereof, and that in pursuance of that right he confined that appeal to the single provision of the decree which abates his action in favor of the one brought by the other party.

We are disposed to hold with the appellant on this proposition. The great weight of authority in other states is to the effect that a party against whom a judgment has been entered may pay the same without waiving his right to appeal. This court has given adherence to the narrower rule which makes such payment a waiver unless it has been made under duress or threatened confiscation of property. But, so far as we now recall, no precedent among our decisions goes to the extent of holding that a payment of costs taxed against a party to litigation is a waiver of his right to have reviewed upon appeal any one or more of the issues which the trial court has determined. Actions are not brought simply to recover the costs which may accrue in the course of the proceedings. The taxation of costs is a mere incident to the real controversy, and within certain limits is a matter of the court's discretion. Costs remain a personal charge or demand against the party by whom they are made, notwithstanding judgment therefor has been entered against the opposing party. If a defeated party thinks the matter of costs taxed against him of too trifling moment to quarrel over and pays them to rid himself of annoyance, we discover no good reason why he may not still prosecute an appeal for the protection of the larger interests involved in a particular issue of law or fact. State v. Martland, 71 Iowa, 545, 32 N. W. 485. See, also, Brinkerhoff v. Elliott, 43 Mo. App. 185;Champion v. Plymouth, 42 Barb. (N. Y.) 441;Bruce v. Smith, 44 Ind. 1;Woodward v. State, 58 Neb. 598, 79 N. W. 164. The statute which permits an appeal from a part of a judgment or decree carries with it the clear implication that he who avails himself of that right and appeals from a distinct part of an adjudication against him may conform to all other parts thereof without waiving his appeal. The motion to dismiss is overruled.

[2] II. Turning now to the issues raised by the pleas in abatement, the facts seem to be as follows: Upon the death of Joshua Boone, Mr. John W. Boone, one of the devisees entitled to share in the land, employed counsel, Messrs. Russel, Mills, and Perry, to look after and protect his interests. About the same time Mrs. Emaline Boone, another devisee, sought counsel of the firm of White & Clark. For a time there was some hope or expectation that an amicable partition of the property could be arranged and thus avoid the delay and expense of partition by action in court. The negotiations seeming to be unproductive of results, counsel for John W. Boone advised the beginning of partition proceedings and prepared a petition for that purpose. This petition was filed April 26, 1911, and on the following day an original notice therein was placed in the hands of the deputy sheriff, Thornton, for service. The notice being of unusual length, and many copies being required, it was delivered to one Alexander for the purpose of having the copies typewritten. Whether this was done on the deputy's own motion or at the direction of counsel is a matter of dispute, but we think the fact is not of material importance. It appears, however, that the copies were not made and returned to the deputy until a day or two later. Service of this notice was made on several defendants at different dates beginning May 1st and ending May 27, 1911. While this was going on, something else was also happening. One of the counsel for Emaline Boone discovered the filing of the petition to which we have referred and immediately busied himself in bringing an action of the same nature on behalf of his client. Original notice thereof was prepared notifying the defendants therein named that the petition would be on file on or before May 5, 1911, and this notice, with an urgent request for immediate service, was on April 28, 1911, placed in the hands of the sheriff, Ross, who on the same evening served it on all the heirs and devisees entitled to share in the estate except one on whom service was completed May 10, 1911. The petition was filed May 3, 1911. There was...