Johnson v. Johnson

• Decision Date: 17 June 1971
• Docket Number: No. 54374,54374
• Citation: 188 N.W.2d 288
• Parties: Wendell D. JOHNSON, Appellant, v. Marylu JOHNSON et al., Appellees.
• Court: Iowa Supreme Court

Page 288

188 N.W.2d 288

Wendell D. JOHNSON, Appellant, v. Marylu JOHNSON et al., Appellees.

No. 54374.

Supreme Court of Iowa.

June 17, 1971.

Davidson & Hemphill, Clarinda, for appellant.

Peters, Walker, Campbell & Pearson, Council Bluffs, for appellees.

BECKER, Justice.

In this partition action the trial court ordered disposition of part of the proceeds, imposed a trust of $12,000 of the proceeds due plaintiff, withheld distribution of part of plaintiff's proceeds, and continued duties of the referees as to certain matters. Parts of the order of distribution are challenged by plaintiff by this appeal. We affirm in part, reverse in part and remand for further proceedings.

The principal protagonists were once husband and wife. They were divorced by a separate action which preceded this partition action. The divorce decree provided for division of the properties then owned by the parties. Included in the properties so divided were the farm which was the subject matter of this action and certain real estate in Missouri. The farm was awarded 60 percent to plaintiff and 40 percent to defendant. Defendant was awarded full ownership of the Missouri property.

Plaintiff instituted the present partition action to accomplish the sale of the farm and realize his 60 percent equity therein. The decree of partition was entered, the farm sold, lienholders of record recognized, and order approving procedures to that point was entered without objection. This action left about $40,000 available for distribution to plaintiff and $30,000 to be distributed to defendant.

Thereupon defendant filed an application to impose a trust on a part of plaintiff's proceeds. She alleged plaintiff refused to sign a quitclaim deed to the Missouri property to her, she has been forced to start a quiet title action in Missouri based on the Iowa divorce decree, plaintiff herein has hired attorneys in Missouri to contest that action and the outcome of the Missouri litigation is still in doubt.

Defendant's application for imposition of a trust further alleged that the Missouri property was valued at $21,000 for purposes of an equitable distribution of the marital properties in the Iowa divorce action, it was the intent and purpose of the award to provide defendant herein with a $21,000 property and a trust should be imposed on plaintiff's proceeds for a like sum pending the outcome of the Missouri litigation.

Plaintiff filed a special appearance challenging the court's jurisdiction because the decree of partition is final, the application constitutes a new action based on matters not germane to the partition action, the application is based on a divorce decree which is final and unmodified, no notice was served to institute this new action and the court has jurisdiction of neither the persons nor the subject matter of the application.

The court set both the application and the special appearance for hearing on February 28, 1970. It overruled the special appearance and acted on the application. It imposed a $12,000 trust on plaintiff's share of the proceeds, ordered the funds invested in government obligations or equivalent, ordered plaintiff to quitclaim the Missouri property to defendant and added: '* * * then in that event the Trust herein imposed shall be terminated and the Referees are permitted to distribute the proceeds from the sale of said farm as the interests of the parties shall appear.'

After the order overruling the special appearance and allowing the trust was entered, plaintiff filed a 'Motion for New Trial, To Re-examine the Overruling of the Special Appearance.' This motion was subsequently also overruled but not until after an order approving the amended and substituted final report of the referees was entered. The order of the referees' final report provided for:

1. Sequestration of the $12,000 trust fund.

2. Payment of $9258.98 to the Iowa State Bank, Hamburg, Iowa, to be charged against plaintiff's share of the sale proceeds.

3. Partial distribution of $6000 to plaintiff.

4. Partial distribution to defendant of $27,926.50.

5. Sequestration of $5463.55 to provide for a separate lawsuit by a tenant against the referees. (This lawsuit was subsequently dismissed and the funds distributed to the satisfaction of all parties).

6. Reduction of referees' bond to $6000.

Plaintiff filed notice of appeal. Defendant filed motion to dismiss appeal on grounds the foregoing order was not a final order. For reasons of convenience this motion will be dealt with in the latter portion of the opinion.

I. Plaintiff's first proposition for reversal reads: 'The Court was in error when it imposed a trust upon proceeds of sale in a partition action.' The record to preserve this claimed error was made at the trial level by filing the special appearance and motion for new trial. The special appearance was ineffective on both procedural and substantive grounds. Procedurally the special appearance was inappropriate because plaintiff had already appeared generally by starting the lawsuit and filing a petition. Under such circumstances rule 66, Rules of Civil Procedure, does not apply: 'A defendant may appear specially, for the sole purpose of attacking the jurisdiction of the court, but only before his general appearance. * * * If his special appearance is erroneously overruled, he may plead to the merits or proceed to trial without waiving such error.' Of course the jurisdictional points, except for want of jurisdiction of the parties, could have been preserved by answer under rule 103, R.C.P. or motion to dismiss under rule 104, R.C.P.

From the standpoint of substantive law we are satisfied the court had jurisdiction of both the parties and the subject matter. The parties were already in court. The application was concerned with the same subject matter; i.e., the title and devolution of title of the property in question. In Bauer v. Bauer, 221 Iowa 782, 787, 266 N.W. 531, 534 (1936), we said:

'In the partition case wherein all the parties are before the court, the court of equity has jurisdiction to adjudicate all matters and the rights of the respective parties. Kramer v. Hofmann, 218 Iowa 1269, 257 N.W. 361; Creger v. Fenimore, 216 Iowa 273, 249 N.W. 147.'

Freeman on Cotenancy and Partition, Second Edition, § 505, states:

'All equities may be considered and adjusted.--When a suit for partition is in a court of equity, or in a court authorized to proceed with powers as ample as those exercised by courts of equity, it may be employed to adjust all the equities existing between the parties and arising out of their relation to the property to be divided. 'He who seeks equity must do equity.' Hence whoever, by a suit for partition, invokes the jurisdiction of a court of equity in his behalf, thereby submits himself to the same jurisdiction, and concedes its authority to compel him to deal equitably with his cotenants. As the equities of the cotenants may arise from a great variety of circumstances, it follows that the assertion of these equities necessarily introduces into partition suits a great variety of issues, and calls for various allegations in the respective complaints and answers which would not be required in an ordinary suit for partition not complicated by any special equities between the cotenants.'

Cf. Hausen v. Dahlquist, 232 Iowa 100, 5 N.W.2d 321, 141 A.L.R. 1304.

Plaintiff was entitled to plead or defend after his special appearance was overruled. Rule 85(a), R.C.P. He did not ask for time to plead or offer to contest the matter by further action and does not raise the question here.

The referees filed their amended and substituted final report and application for discharge with appointment of trustee on March 28, 1970, twenty-three days after plaintiff's special appearance was overruled. This report included a notation of investment of $12,000 in a certificate of deposit to be held pending further order of court in connection with the trust. No objection was made to the report. Under rule 66, R.C.P., plaintiff could have contested the matter without prejudice to his rights relative to the special appearance.

We hold the court had jurisdiction to act on the trust matter. The application was not challenged on the merits. On the record before it the court did not err in providing for the trust. It follows that the request to reconsider the trust ruling (improperly denominated a motion for a new trial) was properly overruled.

II. Plaintiff's second proposition for reversal concerns the trial court's failure to order distribution of all funds belonging to plaintiff to which he was entitled.

This is another challenge to parts of the court's order on the referees' final report. However, it is to be viewed in an entirely different light and comprises two different complaints. We conclude both are justified.

The order to pay $9258.98 to the Iowa State Bank, Hamburg, Iowa, simply has no basis whatsoever in the record. The bank was not a party, is not shown to have had a lien on any proceeds and is not mentioned in any pleadings. There was no reference to the matter in any of the referees' reports. There is no showing of any consent by plaintiff. No evidence was taken.

Plaintiff's failure to object to the final report cannot prejudice him as to this assignment. Objections to the final report would avail nothing because the matter was not mentioned. In Skemp v. Olansky, 249 Iowa 1, 6, 85 N.W.2d 580, 583 (1957), we said:

'* * * It is true that even though the special relief prayed for in an action in equity is not supported by the evidence, a request for general equitable relief may often justify the court in awarding other relief, and that such a request is generally to be granted liberally. But the rule is not without limitations. 19 Am.Jur., Equity, Sec. 227, pp. 181, 182; 30 C.J.S. Equity, § 607, pp. 1003, 1004; Paintin v. Paintin, 241 Iowa 411, 413--415, 41 N.W.2d 27, 16 A.L.R.2d 659, and cases cited. The relief...