Hewitt v. Blaise

• Decision Date: 16 December 1926
• Docket Number: No. 37488.,37488.
• Citation: 202 Iowa 1109,211 N.W. 479
• Parties: HEWITT v. BLAISE ET AL.
• Court: Iowa Supreme Court

202 Iowa 1109

211 N.W. 479

HEWITT

v.BLAISE ET AL.

No. 37488.

Supreme Court of Iowa.

Dec. 16, 1926.

Appeal from District Court, Keokuk County; H. F. Wagner, Judge.

Creditor's bill to subject property of the debtor to execution. Judgment dismissing the petition, and the plaintiff appeals. Affirmed.Thomas J. Bray, of Oskaloosa, for appellant.

F. M. Beatty, Talley & Talley, and Willcockson & Willcockson, all of Sigourney, for appellees.

STEVENS, J.

On or about February 23, 1920, appellant sold and conveyed 80 acres of land to the appellee Dena Keck, receiving in payment therefor $3,000 and a mortgage upon the land for $4,200, subject to a prior incumbrance of $6,000. The mortgage executed to Dena Keck was foreclosed by appellant, and judgment entered upon the note, which it was given to secure, on April 15, 1924, for $4,497.04, and upon another item for $433.22. Special execution was issued on the judgment for $4,497.04, and the land sold thereunder for $1,000, leaving a deficiency judgment which has not been paid. At the time the indebtedness to appellant was contracted by Dena Keck, she was the owner of another tract of 200 acres of land upon which she resided in Keokuk county, and on January 28, 1924, she purchased lot 6 in block 20 in the city of Sigourney, making a payment on the purchase price of $491, leaving a balance unpaid of $1,964. On or about February 19, 1924, Dena Keck executed a note for $10,000 to her brother and codefendant, A. M. Blaise, and, to secure the payment thereof, gave him a mortgage upon the 200-acre tract. On February 25th she conveyed the 200-acre farm, for a consideration of $1 and love and affection, to her sons and daughters, who are also appellees in this action. On March 1, 1924, Dena Keck conveyd the lot in Sigourney to her brother, A. M. Blaise, who, the evidence shows, paid the balance of the purchase price thereof.

It is alleged in the petition that all of the foregoing conveyances were fraudulent, and for the purpose of hindering and delaying the creditors of Dena Keck, and that the mortgage executed to A. M. Blaise, and also the deed to the Sigourney lot, were taken in pursuance of a conspiracy entered into between the parties to said conveyances for the purpose of defeating the collecting of appellant's judgment. The court found that the deed conveying the 200-acre farm to the children of Dena Keck was without consideration; that she was entitled to a homestead therein; and that, as the value of the remaining 160 acres was, under all of the evidence, substantially less than the aggregate amount of the incumbrances thereon, the conveyance would not be set aside. The mortgage for $10,000 and the transfer of the Sigourney lot were upheld, and a decree dismissing plaintiff's petition was filed.

[1][2][3] Before considering the case upon the merits, it is necessary to dispose of a motion filed by appellees to affirm or dismiss the appeal upon the ground that the abstract was not filed 30 days before the second term to which the appeal was taken. It may be conceded, for the purposes of this case, that appellant's abstract should have been filed 30 days before the September term of this court, which commenced September 22, 1925. An abstract was filed November 25, 1925, and appellant's brief and argument August 3, 1926. Appellees' motion to dismiss or affirm was not filed until March 20, 1926. Upon submission of this motion in this court, which was on April 9, 1926, it was ordered submitted with the case. Since that date, appellees have filed an additional abstract and a brief and argument. While this court has no power to waive the provisions of the statute requiring abstracts to be filed at least 30 days before the second term after an appeal has been taken, the appellee may, by agreement or by his conduct, waive the right to file a motion to dismiss or affirm and estop himself from doing so. In this case it appears that the motion to dismiss or affirm was not filed until March 20, 1926, many months after the abstract should have been filed, and several months after one was in fact filed. We have held, and it is the rule recognized by this court, that, if the appellee desires to file a motion to dismiss or affirm, he must do so with reasonable promptness, and cannot defer until the appellant has incurred expense in the preparation and printing of an abstract, and thereafter complain because same was not filed within the time required. The time that elapsed after the filing of the abstract, before the motion to dismiss or affirm was filed, precludes appellee from having a dismissal or affirmance upon the ground of appellant's failure to file the abstract, and the motion should...