Brenton State Bank v. Heckmann

• Decision Date: 09 February 1943
• Docket Number: 46185.
• Citation: 7 N.W.2d 813,233 Iowa 682
• Parties: BRENTON STATE BANK v. HECKMANN.
• Court: Iowa Supreme Court

7 N.W.2d 813

233 Iowa 682

BRENTON STATE BANK v. HECKMANN.

No. 46185.

Supreme Court of Iowa

February 9, 1943

John L. Sloane, of Des Moines, and Dyer, Jordan & Dyer, of Boone, for appellant.

Emmert James & Lindgren, of Des Moines, for appellee.

GARFIELD Chief Justice.

Plaintiff Brenton State Bank, is the owner of the 140 acre farm in question subject to the life estate of defendant, Dora Heckmann, incompetent, in an undivided half of the property with the right to have such half interest operated in conjunction with the other undivided half. The remainder interest of the undivided half in which defendant has a life estate is also subject to a charge for the payment of the expenses of her last sickness and funeral.

In 1938 plaintiff brought suit in equity to have the shares of the owners fixed, the property sold, and for other equitable relief. Original notice was duly served upon defendant, Dora Heckmann, and her then guardian, Lana Heckmann, who filed answer. A guardian ad litem was appointed for Dora and he also filed answer. Following a trial, decree was entered in December, 1938, confirming the rights of the owners, appointing a receiver to take charge of the property and reserving the right to order sale. Upon appeal to this court, the decree was affirmed. In re Estate of Heckmann, 228 Iowa 967, 291 N.W. 465. The decree provided in part:

"That plaintiff's petition for partition in this case insofar as it contemplated a sale and division of the proceeds at this time to the interested parties, is denied, without prejudice, however, to the power of this court and the receiver to sell all of said property as hereinbefore set forth.

(Here follows provision appointing receiver to take charge of property.) "* * * and said receiver shall have power to sell all of said real estate if, after such further notice to the guardian of Dora Heckmann and to the Brenton State Bank or their assigns, as this court in this case may hereinafter prescribe, this court shall find that said sale is for the best interests of Dora Heckmann, and the Brenton State Bank or their assigns, and shall by an order in this proceedings order said sale to be made by said receiver by any other officer of this court. * * *

"The court expressly retains jurisdiction of this cause and of the property herein involved for the purpose of making such other and further orders as the court shall deem proper."

In September, 1941, plaintiff filed in the same cause its application for sale of the realty, alleging that: the property had been sold for nonpayment of taxes more than 2 years and 9 months prior thereto, the amount necessary to redeem from tax sales exceeded $1000, defendant had no means of paying half of such amount nor the $405 costs taxed against her share, waste had been committed and some buildings torn down or damaged, adjoining owners had demanded erection of a lawful partition fence, a purchaser could now be obtained for the 140 acres.

The court ordered plaintiff's application set for hearing and that ten days' notice thereof by registered mail be given George Heckmann, guardian of defendant. (George had succeeded Lana as such guardian.) The prescribed notice was given. George, the guardian, thereupon consulted attorneys John McLennan and Donald Holdoegal. One of the attorneys prepared and the guardian signed a verified answer denying plaintiff's application and asking for funds to repair the house and buy food and clothing for the incompetent defendant. The attorney mislaid the answer, however, and it was never filed.

The guardian and his two attorneys went to the courtroom at the time finally set for hearing on the application. The same judge presided who heard the original case and rendered the decree of December, 1938. Attorneys for plaintiff were present at the hearing as were the receiver and a man who had lived and worked on the farm since 1927. Attorneys on both sides agreed that the hearing should be informal and that they did not care to have testimony reported. Attorneys questioned the receiver and perhaps others. No witnesses were sworn, however. At least one of the attorneys for the guardian made an argument to the court.

At the conclusion of the hearing the court announced that he would make a decree for the sale of the property, outlined what it should contain, directed plaintiff's counsel to prepare the decree and submit it to the guardian's attorneys. Such decree was prepared, submitted to counsel and signed by the court on December 11, 1941.

On January 30, 1942, defendant, apparently acting through other counsel filed "Objections to Partition and Sale of Real Estate." On or before February 21, 1942, defendant dismissed these objections without prejudice. On ...