Kelley v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 13 February 1912
• Citation: 134 N.W. 566,154 Iowa 87
• Parties: PETER KELLEY, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD CO., Appellees
• Court: Iowa Supreme Court

134 N.W. 566

154 Iowa 87

PETER KELLEY, Appellant, v. CHICAGO, BURLINGTON & QUINCY RAILROAD CO., Appellees

Supreme Court of Iowa, Des Moines

February 13, 1912

Appeal from Lee District Court.--HON. HENRY BANK, JR., Judge.

SUIT in equity to quiet plaintiff's title to a certain lot in the city of Keokuk. Defendant pleaded the statute of limitations adverse possession; that plaintiff's title was based upon a void tax deed; that the matters in issue had already been adjudicated adversely to plaintiff in another action between the same parties; and that plaintiff has no right whatever in and to the property and no claim upon defendant except perhaps to require it to redeem from a tax sale. Defendant also filed a cross petition against plaintiff, asking that its title be quieted as against plaintiff's tax deed, and in this cross petition it made the following allegations "Defendant further states that it hereby tenders to William Ballinger or to plaintiff, or to whomsoever this court may direct, any amount which this court may find is due from this defendant, if any, to redeem from the tax sale for the state and county taxes against said lot 1 in block 8 in Keokuk, Lee county, Iowa, for the year 1884, and subsequent taxes, and hereby tenders such sum as the court may find necessary to redeem from said sale of 1885 to said William Ballinger, if the court should find that this defendant should redeem from said sale." In his reply to defendant's answer and cross petition, plaintiff, among other things, pleaded a former adjudication, and asked that his titled be quieted, and he also pleaded the statute of limitations against defendant's right to redeem. Upon the issues thus tendered and the testimony adduced, the trial court refused to quiet title in plaintiff, and found and decreed "that the defendant has tendered and deposited with the clerk $ 41.50, the amount the court finds necessary to redeem said lot from the tax sale of 1885, with interest and penalty to this date; that defendant is entitled to have the title to said lot on his cross petition quieted against any claim of the plaintiff, and it is ordered that the title to said lot be quieted in defendant, with costs taxed at $ against plaintiff." Plaintiff appeals.--Modified and remanded.

Modified and remanded.

B. F Jones and Bernard A. Dolan, for appellant.

Hazen I. Sawyer, for appellee.

OPINION

DEEMER, J.

The record in the case is long and the issues and facts so obscured and complicated that it is difficult to state them with any degree of clearness. When reduced to its last analysis, the questions for decision, if we understand them, are few and comparatively simple. The whole matter turns upon a decree entered bye the district court of Lee county, Iowa, on December 26, 1895, in an action brought by this defendant against the plaintiff herein to quiet its title to the lot now in controversy. That decree found and ordered . . . "that plaintiff is the absolute and unqualified owner of said lot; such ownership being in fee simple free from any lien, claim, right, title, or interest of Peter Kelley or any of the defendants herein; that the tax deed held by Kelley upon said lot be set aside, annulled, and canceled, and that Peter Kelley had no right under and by virtue of a certificate of sale for taxes upon said lot; that plaintiff is entitled to the absolute and unconditional possession of said property, and that there issue out of this court a writ, authorizing the sheriff to remove all persons upon said lot and place the plaintiff in possession of same. That plaintiff have and recover of Peter Kelley the costs of this proceeding taxed at $ , and that execution issue therefor after ten days." From that decree defendant therein appealed to this court, and upon a hearing here the decree was sustained with a modification as shown by the opinion filed in the case April 8, 1898, reported in 105 Iowa 111, reading as follows: "The plaintiff tendered the amount paid by Ballinger at the tax sale, with interest and penalties, and these it will be required to pay in order to redeem. With this modification the decree will be affirmed."

The only entry made upon the records of this court reads as follows: "In this cause the court, being fully advised in the premises, file their written opinion affirming the judgment of the district court. It is therefore considered by the court that the judgment of the court below be and it is hereby modified, and the cause is remanded for further proceedings in harmony with the opinion of this court, and that a writ of procedendo issue accordingly. It is further considered by the court that the appellee pay the costs of this appeal, taxed at $ , and that execution issue therefor."

No procedendo was issued or called for until some time in August of the year 1906; but on the 30th of that month one was issued over the hand and seal of the clerk of this court, directed to the district court of Lee county, which contained the following citations and order: "Whereas the supreme court of said state being lately certified of the record and proceedings in a certain cause which was in said district court, wherein Chicago, B. & Q. Ry. Co., plaintiff, and Peter Kelley et al., appellants, defendants, wherein there was an appeal from the order and judgment rendered in the district court to the supreme court, and the said court having duly examined the record and proceedings aforesaid, in the premises, at Des Moines, in said state, on the 8th day of April, 1898, did modify and affirm the judgment aforesaid, as rendered in the court below, . . . and order further proceedings to be had in said court, not inconsistent with the opinion of the supreme court. Therefore, you are hereby commanded that, with the speed which of right and according to law you may, you proceed in the manner required by law and in harmony with the opinion in this court, anything in the record or proceedings aforesaid heretofore certified to the contrary notwithstanding." This procedendo was evidently sent to the attorney for Kelley, and he had possession thereof until during the trial of this case, when it was produced and filed with the clerk of the district court on March 11, 1909. Even then no change was made in the original decree entered by the district court of Lee county in December of the year 1895. In entering its decree in the present case the trial court evidently took notice of this procedendo, and made its final decree accordingly. At this point we may say that no final decree was ever entered in this court in the original action, and that as a matter of fact the original decree has not down to this date been modified by the Lee county district court.

Acting no doubt, upon the assumption that there was a final decree in the original action, either in this court or the...