Hodowal v. Yearous

• Decision Date: 07 October 1897
• Citation: 72 N.W. 294,103 Iowa 32
• Parties: HODOWAL ET AL. v. YEAROUS ET AL. YEAROUS v. HODOWAL.
• Court: Iowa Supreme Court

103 Iowa 32

72 N.W. 294

HODOWAL ET AL.

v.YEAROUS ET AL.

YEAROUS

v.HODOWAL.

Supreme Court of Iowa.

Oct. 7, 1897.

Appeals from district court, Jones county; W. P. Wolf, Judge.

The first-entitled action is to set aside a tax deed, and permit redemption from a sale for taxes; the second, for forcible entry and detention of real property. The real estate involved in the two suits is the same. The equity suit was commenced in September, 1895, and the other before the justice October 31, 1895, and the issues tried to a jury, that returned a verdict for the defendants. The defendant appealed to the term of the district court commencing December 10, 1895, and on the 17th of that month the appellant, not having the cause docketed, as provided by rule 4 of “Rules of Practice in District Courts,” the appellee procured the same to be docketed, and the judgment was affirmed. On the same day the appellant appeared, and moved the court to open the judgment, and set the case for trial, and that it be consolidated with the equity case. The motion, supported by affidavit, was sustained. Later in the proceedings, a motion to set aside the order of consolidation was denied, and a motion by defendants in the equity case to separate the causes for trial was denied, as was also a jury in the law action. The cases, as consolidated, then proceeded to trial, and a decree was entered dismissing the petition in the equity case, and awarding possession to the plaintiff in the law action. The plaintiffs in the equity suit and the defendant in the law action appealed. Reversed.W. C. Gregory and R. W. Henry, for appellants.

GRANGER, J.

1. It is insisted that the causes should not have been consolidated. It seems clear to us they should not have been, if for no other reason, because the statute does not provide for the consolidation of such causes. Code 1873, § 2734, is as follows: “Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no sufficient cause be shown the same shall be consolidated.” These two actions were, at the date of consolidation, pending in the same court, but they could not have been joined. One is a law action, and the other an equitable one. They are to be prosecuted by different proceedings. Code 1873, § 2630, tells what actions may be joined, as follows: “Causes of action of...