Dolan v. Bartruff
| Decision Date | 13 February 1914 |
| Citation | 145 N.W. 273,165 Iowa 252 |
| Parties | BERNARD A. DOLAN, as Guardian of Louisa Grimsley, Appellant, v. E. T. BARTRUFF, Appellee |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.--HON. W. S. HAMILTON, Judge.
ACTION for damages for alleged wrongful dispossession of the plaintiff Grimsley from certain real estate. At the close of the plaintiff's evidence, there was a directed verdict for the defendant. The plaintiff appeals.
Affirmed.
Herminghausen & Herminghausen, B. F. Jones and Bernard A. Dolan, for appellant.
Hollingsworth & Blood and F. M. Ballinger, for appellee.
For convenience of discussion we shall disregard the guardianship and refer to Louisa Grimsley as the plaintiff.
The petition, although in two counts, does not disclose the ground of liability on which recovery is sought. For the moment, therefore, we look beyond it into the evidence and the argument.
The facts in this case rest upon the history of a previous case between the same parties under a reverse title. This action grows out of the partial enforcement of the decree in such former action. Prior to such former action the defendant held a purported tax title to certain real estate in the city of Keokuk. The plaintiff herein was in possession thereof, and had been in possession for many years. In 1907 an action was brought by this defendant against this plaintiff in the superior court of the city of Keokuk to quiet title and to recover possession. He prevailed in the action and obtained full relief, including an order for writ of possession. The plaintiff appealed to this court. While such appeal was pending, and before its determination, the plaintiff herein (being appellant therein), dismissed her appeal. Such dismissal of the appeal was had in pursuance of a compromise. By such compromise the defendant Bartruff (appellee therein) surrendered his claim to a part of the real estate, and executed a quitclaim deed therefor. This quitclaim deed was made to one Hughes, the attorney of record for Mrs. Grimsley. At the same time, or just prior thereto, Mrs. Grimsley quitclaimed the entire property covered by the decree to one McIlwaine. McIlwaine quitclaimed to Hughes, and Hughes quitclaimed to Bartruff that remaining part of the real estate which was not included in the quitclaim deed of Bartruff to Hughes. Bartruff caused a writ to issue and to be placed in the hands of an officer, who executed the same and put Bartruff in possession of that part of the real estate which he had not surrendered since the decree in his favor. The principal contention of appellant in argument is that the legal effect of the compromise referred to was to fully cancel and satisfy the former decree, and that the issuance of a writ thereunder thereafter was malicious and actionable and that this is so regardless of whether the appellant was entitled to retain her possession or not. The present action is brought to recover the alleged resulting damages.
The parties in the former suit entered into a written stipulation. Its only provision was that the appeal should be dismissed. Oral testimony was received as to the reason or consideration for the dismissal. It is upon such testimony that our foregoing statement is based. There was no cancellation...
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