Fulliam v. Drake

• Decision Date: 20 May 1898
• Citation: 75 N.W. 479,105 Iowa 615
• Parties: E. B. FULLIAM, J. D. FULLIAM, SULTANA BARTLETT and ELIZA J. BOND, Appellants, v. M. D. DRAKE, H. E. WILEY, Sheriff of Muscatine County
• Court: Iowa Supreme Court

75 N.W. 479

105 Iowa 615

E. B. FULLIAM, J. D. FULLIAM, SULTANA BARTLETT and ELIZA J. BOND, Appellants, v. M. D. DRAKE, H. E. WILEY, Sheriff of Muscatine County

Supreme Court of Iowa, Des Moines

May 20, 1898

Appeal from Muscatine District Court.--HON. W. F. BRANNAN, Judge.

SUIT in equity to enjoin a sale of real estate under execution, and to set aside and annul certain proceedings wherein defendant M. B. Drake was awarded execution against the property of George W. Fulliam, deceased. The trial court sustained a demurrer to the petition, and denied the injunction asked and plaintiffs appeal.

Affirmed.

Richman & Richman for appellants.

Jayne & Hoffman for appellees.

DEEMER C. J. WATERMAN, J., took no part.

OPINION

DEEMER, C. J.

In 1874, F. A. Drake recovered a judgment against George W Fulliam for the sum of eight hundred dollars. Fulliam died in the year 1893, leaving eight children as his only heirs. Four of these children are the appellants in this action. M. B. Drake became the owner of the judgment by assignment, and after the death of Fulliam she commenced proceedings, under section 3092 of the Code of 1873, asking the court to award her execution against certain real estate which she claimed belonged to George W. Fulliam, at the time of his death. She made all the heirs parties to this proceeding, but it is now claimed that but two of them, to-wit, J. D. Fulliam and E. B. Fulliam, in addition to J. D. Fulliam as administrator of the estate, were served with notice or appeared to the proceedings. In that action the court, after hearing the evidence adduced upon the issues as tendered, awarded the execution as prayed. The defendants therein appealed to this court, where the order was affirmed. See Drake v. Fulliam, 98 Iowa 339, 67 N.W. 225. After the affirmance, execution issued and was levied upon the real estate described in the order, and this action was brought to restrain further action upon the execution, and to set aside the order awarding the execution, upon the ground that the court which awarded it was without jurisdiction because all the owners of the property were not made parties defendant to the proceeding, because the original judgment was not a lien upon the premises, and for the further reason that the appellants herein showed an independent record title in themselves. It is also claimed that the enforcement of the order will deprive plaintiffs of their property without due process of law. It is further alleged that E. B., J. D., and S. J. Fulliam are the owners and in the present possession of the property. The petition reciting these facts, as well as some others which we do not regard as controlling, was presented to the trial court for the allowance of a temporary writ of injunction. Appellee Wiley alone appeared to the proceedings, and filed a demurrer to the petition based upon the ground that plaintiffs were not entitled to the relief demanded, because of defect of parties, plaintiffs, and defendants, and one other ground not necessary to be stated. This demurrer was sustained, and the temporary injunction asked for denied.

The real parties in interest in this controversy were parties to served with notice of, and appeared in the special proceedings for award of execution. In that action these plaintiffs denied that George W. Fulliam died seized of any part of the real estate against which award of execution was asked, and alleged that they, with S. J. Fulliam, owned the said real estate. They also pleaded some other defenses not necessary to be mentioned. They did not plead, however, that the other heirs were not served with notice and did not appear to the petition. On the contrary, the record of the court made upon the hearing of the application recites that all the defendants appeared by attorneys Hanley & Detwiler, and introduced their evidence. That E. B. and J. D. Fulliam are concluded by what was in fact adjudicated in that proceeding is clear, and this adjudication is final, unless grounds exist for a new trial or for equitable interference. That they are also bound as to all matters which should have been pleaded in defense to that, unless facts appear justifying a re-trial, or unless, as claimed by appellants, the court which awarded the execution was without jurisdiction, is equally clear. These propositions are so elementary as not to need the citation of authorities in their support. It is manifest that this is not an application, either at law or in equity, for a re-trial. If it were, it should not be granted, for the reason that the parties to the original proceeding are not all made parties to this suit, and some of the persons made parties to this suit were not parties to that. Treating this case, then, as an application for a re-trial to vacate or reverse the original order, under sections 3154 to 3162, inclusive, of the Code of 1873, the appellees' demu...