Dunton v. McCook

• Decision Date: 18 May 1903
• Citation: 94 N.W. 942,120 Iowa 444
• Parties: L. B. DUNTON v. THOMAS MCCOOK, Appellant, A. E. MUNSON, Administrator of Estate of A. F. Tyrrell, Deceased, AND HATTIE M. MUNSON et al., Heir-at-law of A. F. Tyrrell, Appellees, AND BLAKE & COMPANY, V. THOMAS MCCOOK, Garnishee, Appellant
• Court: Iowa Supreme Court

94 N.W. 942

120 Iowa 444

L. B. DUNTON v. THOMAS MCCOOK, Appellant, A. E. MUNSON, Administrator of Estate of A. F. Tyrrell, Deceased, AND HATTIE M. MUNSON et al., Heir-at-law of A. F. Tyrrell, Appellees, AND BLAKE & COMPANY, V. THOMAS MCCOOK, Garnishee, Appellant

Supreme Court of Iowa, Des Moines

May 18, 1903

Appeal from Mitchell District Court.--HON. CLIFFORD P. SMITH, Judge.

IN Dunton v. McCook, 93 Iowa 258, this court affirmed a decree of the district court, entered May 18, 1892, to the effect that a deed of certain real estate executed by A. F Tyrrell to Thomas McCook in 1875 was in fact a mortgage to secure the payment of certain advances made by the latter from sales, and rents and profits collected; that upon accounting $ 524.44 was still owing January 1, 1890; that upon payment thereof "said Tyrrell will be entitled to a reconveyance of the premises remaining unsold, and upon payment of said sum it is ordered that said defendant McCook reconvey said premises to the said defendant Tyrrell, and upon failure to so convey, the judgment and decree shall have the full force and effect of such a reconveyance." The judgments of Dunton were also decreed to be liens on the premises. A rehearing was denied June 1st, and a procedendo filed in the district court June 22, 1895; and on the 6th of February, 1896, leave was asked by plaintiff to file a supplemental petition. Over McCook's objections, such leave was granted, and the petition filed May 9, 1896, in which, after giving a history of the case, it was alleged that McCook had been in possession of the premises since January 1, 1890, and had received more than enough rents and profits to cover the balance due him; and an accounting was prayed, and also a decree that his claim be satisfied, and the relief previously awarded enforced. The defendant McCook's motion to strike, and demurrer, on the ground of such a pleading not being permissible after final decree were overruled, and he then answered. Tyrrell having died May 22, 1896, his administrator, A. T. Munson, was substituted as party defendant, and in his answer, filed October 11, 1898 admitted plaintiff's allegations, and alleged the right to immediate possession. October 1, 1901, plaintiff, by leave of court, made the heirs of Tyrrell parties defendant; and thereupon they and the administrator, in addition to admitting the facts as pleaded by plaintiff, asked to be awarded the rents and profits found due, and the title to the property. Upon hearing the court found the indebtedness to McCook was canceled by rents and profits collected up to February 2, 1896; that he should account to the administrator from the time of Tyrrell's death, $ 64; that he should account to the heirs from that time to the date of the trial, October 2, 1901, in the sum of $ 888, less $ 150 directed to be paid on garnishment--and entered a decree accordingly, and also awarded said heirs immediate possession, and confirmed the liens of plaintiff's judgments, directing sale thereunder. The defendant McCook appeals.--Affirmed.

AFFIRMED and REMANDED.

John McCook and G. E. Marsh for appellant.

W. L. Eaton for appellees.

LADD J. SHERWIN, J., took no part.

OPINION

LADD, J.

The original decree in this case was entered in the district court May 18, 1892. Upon appeal that court lost jurisdiction. As said in Levi v. Karrick, 15 Iowa 444: "When appeal is taken, all power of the court below over the parties and subject-matter is lost until the cause, or some part thereof, is remanded back, by order of this court, for its further action." McGlaughlin v. O'Rourke, 12 Iowa 459; Stillman v. Rosenberg, 111 Iowa 369, 82 N.W. 768. But pending such appeal the decree continued in full force for all purposes. Watson v. Richardson, 110 Iowa 698, 80 N.W. 416. It was affirmed in this court January 18, 1895, and petition for rehearing denied June 1st of that year. That ended the suit. Thereafter it was pending in neither court. The affirmance was merely a ratification of what had been done in the lower court, and left the parties in precisely the same situation as though no appeal had been taken. U. S. v. Jones, 26 Fed. Cas. 638 (No. 15,492); Steinbach v. Stewart, 78 U.S. 566, 11 Wall. 566 (20 L.Ed. 56); 3 Cyc. 422; Werborn v. Pinney, 76 Ala. 291. Under our practice a new decree is not entered in the Supreme Court upon affirmance, but that of the court below confirmed, with a judgment for costs added. As the cause was not remanded for any purpose, the district court did not acquire jurisdiction to retry any of the issues subsequent to appeal. The suit having been terminated, the clerk could not revive or open it again by issuing a procedendo. The only purpose for that process in such a case is to notify the district court that it is at liberty to enforce its decree. In Steel v. Long, (Iowa) 84 N.W. 677, an order of the district court striking a cross-petition filed subsequent to the affirmance of the original decree was approved, the court saying: "Not a thing remained for the trial court to do, nor was it directed to take further action in the matter. The original action was therefore at an end, so far, at least, as the district court was concerned, and the defendant had no right to then file a cross-petition. If the position contended for by appellants were tenable, there would be no end to a cause of action. If a cross petition may be filed and new parties brought in one week after final determination by decree it might, under such circumstances, be permitted one, two or three years thereafter." To the same effect, see McCall v. Webb, 126 N.C. 760 (36 S.E. 174); Greenwood Township v. Richardson, (Kan.) 10 Kan.App. 581, 62 P. 430; Herstein v. Walker, 90 Ala. 477 (7 So. 821). So far as the questions at issue were concerned, the suit, upon affirmance, became a part of the irrevocable past.

II. But no attempt was made in the subsequent pleadings to change or modify the decree. The object sought related solely to the enforcement of that already rendered. True, the pleading filed by plaintiff is designated a "supplemental petition," and, as contended, was not such as is contemplated by section 3641 of the Code. Leach v Germania Building Ass'n, 102 Iowa 125, 70 N.W. 1090; Foote v. Burlington Gaslight Co., 103 Iowa 576, 72 N.W. 755; Allen v. Davenport, 115 Iowa 20, 87 N.W. 743. But the name by which it was labeled is not material. Though the court had lost jurisdiction of the suit, it had not of the decree. It still retained the inherent power to enter appropriate orders for its enforcement. In Hartley v. Bartruff, 112 Iowa 592, 84 N.W. 704, in approving an order extending the time fixed in...