Lippold v. Lippold

• Decision Date: 11 October 1900
• Citation: 83 N.W. 809,112 Iowa 134
• Parties: LIPPOLD ET AL. v. LIPPOLD ET AL.
• Court: Iowa Supreme Court

112 Iowa 134

83 N.W. 809

LIPPOLD ET AL.

v.LIPPOLD ET AL.

Supreme Court of Iowa.

Oct. 11, 1900.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

Suit in equity for the partition of real estate at one time owned by William Lippold. Defendant George Lippold claims to be the owner of the property by deed from William. The trial court dismissed the petition, and confirmed title in defendant George Lippold, and William H. and Gustave Lippold, by their guardian, appeal. Dismissed and affirmed.Turner & Cullison, for appellants.

Benjamin & Preston, for appellees.

DEEMER, J.

Other than those appearing in a representative capacity, the parties to this suit are the heirs at law of William Lippold, deceased, who had been the owner of, and until the time of his death occupied, the premises of which partition is prayed. Defendant George Lippold controverts the descent, and pleads title in himself by deed from William Lippold of date November 19, 1894. This defendant also pleads certain advancements made by the ancestor to the other heirs, and asks that these advancements be fixed and allowance made therefor in the event partition is granted. The delivery of the deed to George Lippold is denied, and this issue presents the real controversy in the case. The co-defendants of George Lippold filed a disclaimer, and also stated in this disclaimer that they had quitclaimed their interest to George. The appellants did not serve notice of appeal on their co-plaintiffs. Code, § 4111, provides, “A part of several co-parties may appeal; but in such a case they must serve notice of the appeal upon all the other co-parties and file proof thereof with the clerk of the supreme court.” Under this section we have uniformly held that in partition suits, where there are several parties plaintiff or defendant, and one of these appeals, notice of appeal must be served on co-parties. Laprell v. Jarosh, 83 Iowa, 753, 49 N. W. 1021;Hunt v. Hawley, 70 Iowa, 183, 30 N. W. 477;Ash v. Ash, 90 Iowa, 229, 57 N. W. 862. Failure to give the notice is not jurisdictional, however, and this court can consider such questions in the case as do not affect the rights or interests of the other parties. If we should reverse the judgment in this case, the effect would be to hold that all the parties save those who had filed disclaimers are entitled to inherit a portion of the land. We would also be required to consider the question of advancements made to some of the parties. Manifestly, this would affect the rights of the other parties. We are the more ready to reach this conclusion for the reason that the decree of the district court on the main issue presented seems to be correct, and in accord with the previous holdings of this court in Newton v. Bealer, 41 Iowa, 334...