Mally v. Mally

• Decision Date: 28 May 1901
• Citation: Mally v. Mally, 114 Iowa 309, 86 N.W. 262 (Iowa 1901)
• Parties: MALLY v. MALLY.
• Court: Iowa Supreme Court

114 Iowa 309

86 N.W. 262

MALLY

v.MALLY.

Supreme Court of Iowa.

May 28, 1901.

Appeal from district court, Polk county; S. F. Prouty, Judge.

One Catherine Mally died testate on September 21, 1898, seised of two tracts of land,--one of 80 acres, and the other of 22 6/100 acres.The parties hereto are sons of said Catherine Mally, who in her will gave a legacy of $600 to plaintiff, and all of her real estate to defendant.It is claimed on behalf of plaintiff that he and his sister purchased the 80-acre tract in the year 1865, paying in equal shares therefor; that at the same time, and from the same grantor, Catherine Mally purchased the 22 6/100 acres; that but one conveyance was made, which included both tracts, and that was to Catherine Mally,--it being the intention of plaintiff and his sister that their mother should have a life interest in the 80-acre tract.It is plaintiff's contention here that he is the owner of one-half the 80-acre tract, which, as he asserts, his mother held in trust.This action was brought in equity to have his interest set off and his title quieted.There was a decree for plaintiff, which, upon defendant's motion, was set aside.The character of the motion will be considered in the opinion.From this order plaintiff appeals.Affirmed.E. P. Hudson and W. D. Evans, for appellant.

Brennan & Brennan, for appellee.

WATERMAN, J.

After the evidence was all in, the court orally announced its decision on the merits of the case, which was in plaintiff's favor, and ordered a form of decree prepared.In conformity therewith, counsel for plaintiff prepared a decree, which was duly signed by the judge on the 18th day of March, 1899.On the 21st of March defendant filed the following motion, which was supported by affidavits, the nature of which we shall have occasion to review to some extent hereafter: “Comes now P. F. Mally, the defendant in the above-entitled cause, and moves the court to set aside the submission and decree entered in this cause on the 18th day of March, A.D. 1899, and to permit the defendant herein to introduce new, additional, and further testimony and evidence on his behalf, which the defendant was unable to produce at the former hearing of this cause, and in support of this motion refers the court to the affidavit hereto annexed and made a part hereof.”On the 30th day of the same month this motion was amended as follows: “Comes now P. F. Mally, the defendant in the above-entitled action, and, by way of amendment to his motion heretofore filed in this cause to set aside the submission and decree, and to permit this defendant to introduce new, additional, and further testimony in said cause, states as the grounds of such motion: First, surprise which ordinary prudence could not have guarded against; second, newly-discovered evidence affecting materially the substantial rights of the defendant, and which he could not, with reasonable diligence, have discovered and produced at the former hearing of this cause.Defendant, in further support of said original motion and this amendment thereto, also refers the court to the affidavits of George A. Troeger and William E. Mally, which said affidavits are hereto annexed and made a part hereof.”There was no objection made by plaintiff to the filing of this amendment.Appellant insists that the case could not...