Eller v. Needham
| Decision Date | 15 November 1955 |
| Docket Number | No. 48776,48776 |
| Citation | 73 N.W.2d 31,247 Iowa 565 |
| Parties | Chester J. ELLER and Thelma Louise Eller, Petitioners, v. Dring D. NEEDHAM, Judge, Respondent. |
| Court | Iowa Supreme Court |
Chester J. Eller, Des Moines, for petitioners.
No appearance for respondent.
As with Sam Weller's refractory periwinkle (see Dickens' 'Pickwick Papers'), the facts and issues here are difficult to uncover. The record, consisting only of the respondent's return, is confused and involved; the appellees, having failed to appear in this court, give us no aid; and the appellant's statement of facts is meager. We shall endeavor to state the essence of the material matters involved.
The case comes to us by certiorari to the District Court of Iowa for the Ninth Judicial District, the respondent being one of the judges of that court. It appears that in the latter part of the year 1953 the petitioners commenced three separate actions against Dale A. Crabtree and Mildred L. Crabtree, all arising out of landlord and tenant relations. The defendants in these actions were tenants upon a farm owned by the petitioners in Polk County. The first action, designated as Law No. 61381, was in replevin, apparently to recover certain livestock. The second, Equity No. 62335, prayed for a landlord's attachment and the foreclosure of a landlord's lien against personal property of the defendant tenants. The third, designated as Law No. 61538, asked a landlord's attachment and foreclosure of a conditional sales contract against certain chattel property of the defendants. The defendants appeared and filed answers, but apparently eventually the issues were determined against them. Either late in 1953 or early in 1954 these three cases were consolidated. The fourth case of the series, an action to replevy money from the clerk, in which the rulings here complained of were made, is labelled Law No. 63965.
On March 2, 1954, the plaintiffs filed an application for the appointment of Robert Conley, one of the present intervenors, as receiver to take charge of certain personalty; perhaps, although the record does not clearly so show, the same which was covered by the conditional sale contract relied upon in Law No. 61358. On March 4, 1954, Mr. Conley was appointed as receiver in accordance with the application, and duly qualified. On March 18 next the plaintiffs filed their application for removal of the receiver, and hearing was had. During the hearing the intervenor Leo J. Tapscott was appointed by the court as attorney for Mr. Conley. The application for removal was denied, being labelled by the court (through Judge Jordan), as 'vicious, untrue, and perhaps libelous, and the court so finds'. Shortly thereafter Mr. Conley resigned. After a hearing at which the plaintiffs appeared and resisted on April 29, 1954, fees were allowed to Conley as receiver and to his attorney, the order providing: 'That the sum of $200.00 for receiver's fees and $6.16 for mileage shall be a part of the costs of the receivership and of this action.' Mr. Tapscott was allowed fees of $50 as attorney for the receiver, and the order contained the same provision that 'said fees are made a part of the costs of the receivership and of this action.' The record before us does not show in which action the costs were so taxed, except that the orders were made after the consolidation and apparently applied to the consolidated action.
While the consolidated action was pending and undetermined, apparently by agreement of the plaintiffs and defendants therein, certain grain was sold and the proceeds paid to the sheriff. This was later paid to the clerk of the court. It is a residue of these moneys, in the sum of $1,353.89, which was replevied from the clerk by the plaintiffs in Law No. 63965, the case in which the respondent is alleged to have acted illegally and in excess of jurisdiction. In the latter action the clerk of the court was the defendant, and Conley and Tapscott separately intervened, under the authority of section 643.4, Code of Iowa 1950, I.C.A., as claimants to the property involved or a part of it. Thereupon the plaintiffs-petitioners moved for a summary judgment that they were entitled to the entire fund. The respondent after hearing dismissed the motion insofar as it concerned the fees allowed to the intervenors and the other costs properly taxed in the office of the defendant clerk. In effect this holding means that the court costs, including the fees of the receiver and his counsel, should be first paid from the fund, and the petitioners are entitled to the remainder. It is this ruling which the petitioners say exceeded the jurisdiction of the respondent, or shows that he was acting illegally.
I. The first error assigned by the petitioners is that the respondent erred in assessing the costs in the summary judgment action against the plaintiffs, asserting 'Every order and judgment of any Court must have and be based on a pleading or record of some kind and there is none in the case.
'This rule of law is so well established in the State of Iowa that no citations are necessary.' We find no merit in this assignment. If we assume the correctness of the rule of law stated, there were petitions of intervention and resistances to the motion for summary judgment which justified the taxation of costs against the unsuccessful party, the petitioners herein. The taxation of costs against the losing party follows as a matter of course, in the absence of unusual circumstances which do not appear here.
II. The second error assigned is thus stated: 'The lower court erred and had no legal right to separate Tapscott's and Conley's fees taxed as costs in Law 61538, and entered as a judgment therein against the Crabtrees, defendants, from other costs in the total sum of over $400.00.' In view of the fact that the respondent held, in effect, that all costs taxed should be retained by the clerk, the matter of separation is of no importance. We think, however, that anyone interested in the costs taxed had a right to intervene as a claimant of a part of the fund in controversy, under the specific provisions of section 643.4, supra.
III. The real substance of the petitioners' complaint, if substance it has, is found in the third and final assignment of error. It is here contended that the decree in the cause denominated Law No. 61538 'barred and estopped the Court from overruling said motion (for summary judgment) as amended;' and 'Said decree and judgment in 61538 Law forever estops and bars said defendant (the clerk) and said intervenors and each of them from establishing their claims or either of them against said fund replevied by the petitioners or obtaining any judgment therefor against the defendants.' It is the evident claim of the petitioners that the language of the decree in Law No. 61538 is such that the fund held by the clerk above referred to must be paid over to them without deduction of court costs, which of course by specific order of the court included the receiver's fees and costs. Further detail in regard to this decree is necessary to an understanding of the problem involved.
It has been stated that the three cases, Law Nos. 61381 and 61538 and Equity No. 62335, were consolidated. The petitioners say, in argument, that separate decrees were rendered in each case; the respondent in his ruling on the motion for summary judgment says at least the findings of fact and conclusions of law were filed together as though all three cases were one case; and it seems apparent that after the consolidation and at least until the decrees were signed the cases were considered as one. We are not tole in what case the receiver's and receiver's attorney fees were taxed; and we assume therefore they were taxed as costs in the consolidated case or in Law No. 61538, in which they were incurred. We will not presume error or illegality, Kuiken v. Garrett, 243 Iowa 785, 803, 51 N.W.2d 149, 160, 41 A.L.R.2d 1397; In re Estate...
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Richards v. Iowa Dept. of Revenue
...pertaining to costs must be followed: they are recoverable by the successful party against the losing party. See Eller v. Needham, 247 Iowa 565, 569, 73 N.W.2d 31, 33 (1955); Iowa Code § 625.1; accord 20 C.J.S. Costs § 8, at 266 IV. Disposition. Richards raised reasonable questions about wh......
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