Drake v. Fulliam

• Decision Date: 19 May 1896
• Parties: DRAKE v. FULLIAM ET AL.
• Court: Iowa Supreme Court

98 Iowa 339

67 N.W. 225

DRAKE

v.FULLIAM ET AL.

Supreme Court of Iowa.

May 19, 1896.

Appeal from district court, Muscatine county; C. M. Waterman, Judge.

The petition shows that in February, 1874, F. A. Drake became a judgment creditor of George W. Fulliam, which judgment has been assigned to plaintiff; that George W. Fulliam died prior to June 14, 1893; that J. D. Fulliam, defendant, became the administrator of his estate; that her claim, in judgment, was duly filed and allowed against said estate; that the personal estate is insufficient to pay the judgment; that George W. Fulliam at the time of his death had real estate,--and this proceeding is under Code, § 3092, praying the court to award execution against the same. Issues were taken by answers, and tried, and the court awarded execution as prayed, from which order the defendants appealed. Affirmed.Richman & Burk, for appellants.

Jayne & Hoffman, for appellee.

GRANGER, J.

Appellee presents a motion to strike the evidence from the abstract because the same had not been preserved by a bill of exception. The evidence is certified by the trial judge, but the time at which it was certified does not appear. The parties are in dispute whether the proceeding has been tried as an ordinary or equitable one. In this respect there is hardly room for doubt. The petition is designated, as the law requires, for an ordinary action, by the word “petition.” Code, § 2646. It states the facts, under the provisions of the Code, and asks an order awarding execution. The law requires that execution shall be awarded “unless sufficient cause be shown to the contrary.” Id. § 3095. The answers ask for no relief. They merely present a showing against granting the order. The judgment is a statement of the facts found, under the averments of the petition, and a finding that no sufficient cause has been shown against granting the order, and execution is awarded, with an allowance of 30 days in which to settle, sign, and file a bill of exceptions. Whether the proceeding has been a civil action or a special proceeding, the situation is the same, for the procedure has been in all particulars that of an ordinary action. No bill of exceptions has been filed, and, if the evidence as certified by the judge could be so treated, which we do not decide, the result must be the same; for the evidence was not filed until long after the time fixed for filing the bill of exceptions. See Bunyan v. Loftus, 90 Iowa, 122, 57 N....