Garretson v. Kinkead
| Decision Date | 29 October 1902 |
| Citation | 92 N.W. 55,118 Iowa 383 |
| Parties | W. F. GARRETSON, Administrator, Appellant, v. C. H. KINKEAD, Appellee |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON. W. G. THOMPSON, Judge.
ACTION to recover for wood and potatoes said to have been converted by the defendant, and for money loaned him by James Kinkead plaintiff's intestate. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.
Affirmed.
Fitzgerald & Varner for appellant.
Voris & Haas for appellee.
James Kinkead, defendant's father, died in the year 1890, and defendant was appointed administrator of his estate. It is claimed that at the time of his appointment defendant was indebted to his father for money borrowed, and for other items of account, and plaintiff was appointed special administrator for the purpose of collecting these claims, and as such brought this action. The only items presented for our consideration relate to wood and potatoes and to money borrowed. As to the wood, plaintiff claims that defendant converted a large amount belonging to his father, and that he (plaintiff) should have judgment for the value thereof. It is apparent that, if the alleged conversion occurred after the death of James Kinkead, and after defendant's appointment, this is not the proper form of action in which to reach the matter. Such a claim would not be one owing to the special administrator, and for which defendant should account to him. That matter should be reached by another form of action. See Code, section 3393 et seq. This is not a case where defendant is alleged to have acted as an intermeddler, but one where it is claimed that he was indebted to his father at the time of the father's death. Defendant was regularly appointed administrator, and this is not a proceeding for an accounting. The only question here is, what, if anything, did he owe his father for wood or potatoes at the time of the father's death? On this point there is no evidence which would justify a verdict for any amount on either of the items named. But treating the alleged conversions occurring after the appointment as in issue, the same result must follow, as there was not only uncertainty in plaintiff's evidence but a conflict in the whole, which it was the province of the jury to settle; and we cannot interfere.
II. As to the loan of money, it appears that defendant's father borrowed some money from one Michel, and executed a mortgage on his homestead to secure the same, which mortgage was afterwards foreclosed, and the premises sold. It is contended that this money was procured for defendant; that he promised to repay the amount thereof, and to satisfy the mortgage; and that, having neglected to do so, he is indebted to the estate in the amount of the loan. This defendant denies, and he also claims that he paid debts of his father amounting to much more than the loan. It will thus be seen that there is a conflict in the evidence on this point, which it was the province of the jury to settle. But plaintiff contends that much of the evidence...
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