Lambert v. Rice
| Decision Date | 10 March 1909 |
| Citation | 120 N.W. 96,143 Iowa 70 |
| Parties | E. C. LAMBERT ET AL., Appellants, v. FREDDIE E. RICE, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, JUNE 5, 1909.
Appeal from Mahaska District Court.--HON. K. E. WILLCOCKSON, Judge.
THIS is a proceeding to correct the record and praying for general equitable relief. There was a decree dismissing the petition. Plaintiff's appeal.--Reversed.
Decree reversed.
L. C Blanchard and D. C. Waggoner, for appellants.
W. R Nelson and Gleason & Preston, for appellee.
Mary E Rice died intestate on January 18, 1890, seised in fee of the east half of the southwest quarter, section 17-77-14, in Mahaska County. She left surviving her her husband, David E. Rice, and an only child, Freddie E. Rice, then a minor under fourteen years of age, and now the defendant in the present proceeding. The husband, David E. Rice, was appointed administrator of the estate. As such administrator he presented an application in proper form for leave to sell the real estate for the payment of debts. He obtained an appropriate order to sell and sold the land and issued an administrator's deed therefor. The plaintiff Bolton was the purchaser at such sale, and afterwards conveyed the land by warranty deed to one McSpadden. McSpadden sold to plaintiff Lambert, and Lambert sold by warranty deed to plaintiff McBride, who is now in possession of the land, claiming to own the same under said conveyance. In the proceedings for the sale of the land by the administrator, the land was correctly described in the notices, and in the application for order to sell, and in every part of the record, except in the formal order of sale entered by the court, wherein the description appearing is the south half of the southwest quarter of section 17-77-14. In October, 1900, Freddie E. Rice, the present defendant, brought an action in the district court of Mahaska County against J. B. Bolton and E. C. Lambert, present plaintiffs, to recover the land in question, claiming many irregularities in the proceedings leading up to the administrator's sale. Upon trial had the district court dismissed the petition and quieted the title in the defendants (plaintiffs herein). An appeal was prosecuted to the Supreme Court, and by an opinion filed in this court, reported in 126 Iowa 654, it was held that the plaintiff in that case was entitled to a decree awarding him the north forty of such tract, by reason of the failure of description in the formal order of sale entered by the court in the probate case; no effort having been made up to that time to obtain the correction of the alleged mistake in the record.
The plaintiffs now bring this proceeding, alleging such mistake, and asking that the same be corrected, and that they have such general equitable relief as such correction would entitle them to. On the question of fact, there can be no doubt that the description contained in the formal order of sale was an evident mistake, a mere clerical error obvious on its face, in the light of all the proceedings in the case. The deed issued in pursuance of the sale contained the correct description, and this deed was expressly approved by the court as made in pursuance of the order of sale. The plaintiffs therefore are clearly entitled to relief, unless they have lost their day by sleeping during the prior litigation, and this brings us to the alleged plea of former adjudication.
It may be conceded that the questions involved here could have been litigated by proper pleadings in the former litigation, and that, so far as the correction of the record is concerned, the present plaintiffs could have instituted proper proceedings for that purpose and could have obtained a delay in the former trial for such purpose, and that they are not legally entitled to any consideration for their failure to do so. The serious question for the appellee is whether he has pleaded and proved the alleged former adjudication. In his amended abstract it is alleged that he filed such plea on March 16, 1906. This is denied by the appellants in an additional abstract. It is undisputed in the record that the petition in the case was not filed until March 29, 1906. It is manifest therefore that the alleged plea could not have been filed on the date named in appellee's amended abstract. If, however, we should assume the date stated in the amended abstract to be a clerical error only, the alleged plea of prior adjudication set forth in such amended abstract...
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