Mann v. Lochrie (In re Mann's Estate)

• Citation: 232 N.W. 839,211 Iowa 85
• Decision Date: 11 November 1930
• Docket Number: No. 40416.,40416.
• Parties: IN RE MANN'S ESTATE. MANN ET AL. v. LOCHRIE ET AL.
• Court: United States State Supreme Court of Iowa

211 Iowa 85

232 N.W. 839

IN RE MANN'S ESTATE.

MANN ET AL.

v.LOCHRIE ET AL.

No. 40416.

Supreme Court of Iowa.

Nov. 11, 1930.

Appeal from District Court, Polk County; F. S. Shankland, Judge.

Appeal by executors from ruling on application for change of place of trial.

Dismissed.E. S. Tesdell and I. T. Jones, both of Des Moines, for appellants.

Stipp, Perry, Bannister, Starzinger & Little, of Des Moines, and O. M. Slaymaker and R. E. Killmar, both of Osceola, for appellee Lochrie.

McGinnis & McGinnis, of Leon, for appellees Earl R. and Hazel Johnson.

T. B. Dysart, of Omaha, Neb., for appellee Prudential Ins. Co. of America.

MORLING, C. J.

Appellants, with another who has since resigned, were appointed executors in probate proceedings pending in Polk county. They were removed and a substitute administrator appointed. The substituted administrator, on the authority of the court, sold real estate to appellee Lochrie. The sale and conveyance to Lochrie were approved. It is assumed that Lochrie conveyed to appellees Johnson. The order removing appellants and appointing substituted administrator was afterward reversed on appeal (225 N. W. 261) and appellants were reinstated. Appellants thereupon, impleading Lochrie and the Johnsons, made application for an order vacating the sale and canceling the deed from the substituted administrator to Lochrie for invalidity and collusion and asking for general equitable relief. Lochrie filed motion to strike all claims against him on the ground that he was a resident of Clarke county, and that the action was one to determine rights in real property situated in Decatur county of which the Polk county court had no jurisdiction. Subject to the ruling on this motion, Lochrie moved the court to transfer the proceedings, so far as they affected the sale and deed to him, to Decatur county for trial at the expense of the executors. Appellees Johnson, appearing by different attorneys and alleging that they were residents of Decatur county, filed similar motions. The court overruled the motions to strike but sustained the motion to transfer. The abstract reads: “There was filed the following ‘Order and Judgment.’ * * * It is therefore ordered and adjudged that the motion of Earl R. and Hazel Johnson that the said cause so far as it affects him and the 390 acre farm located and situated in Decatur county, Iowa, and sold to them should be and is hereby sustained, and the said cause so far as it does affect them and said real estate is transferred to the District Court of Iowa, in and for Decatur county, for trial and determination. The court further finds that Earl R. and Hazel Johnson have incurred expense in the sum of $10.00 for attending the wrong court and that they have incurred attorney's fees in the sum of $50.00 for preparing and presenting the application to transfer the cause to the proper county, which is Decatur county. The court further finds that the estate should pay these items and judgment is hereby rendered in favor of the said Earl R. and Hazel Johnson against the executor and executrix of the estate of L. M. Mann, deceased, for the amount of expenses so incurred by the said Earl R. and Hazel Johnson, and the amount of attorney's fees so incurred by them, all in the sum of $60.00 and said executor and executrix are ordered to pay the same. * * *” The recital of “filing” of like “order and judgment” appears with respect to the motion of appellee Lochrie allowing to him the same sums. The notice of appeal is “from the rulings, judgments and orders of the District Court * * * in the matter of the motions of said Earl R. Johnson, Hazel Johnson, C. R. Lochrie * * * for change of place of trial of the application made by said executors in the above entitled case to set aside and vacate the orders of the court for the sale of the real estate belonging to the said estate to C. R. Lochrie. * * *” Appellees Johnson and Lochrie now move to dismiss the appeal.

[1][2][3] Appellants concede that an order merely granting a change of venue is not appealable (Smith v. Morrison, 203 Iowa, 245, 212 N. W. 567), but contend that this court “may review such order or judgment when it is presented in connection with some other order or judgment which is directly appealable.” They argue, “The judgments for $120.00entered by the court against the executors in connection with the order granting the change of place of trial are of sufficient amount to be appealable.” We need not be detained with a discussion of the question whether the ruling...