Mullin v. White

• Decision Date: 06 June 1907
• Citation: 134 Iowa 681,112 N.W. 164
• Parties: MULLIN v. WHITE ET AL.
• Court: Iowa Supreme Court

134 Iowa 681

112 N.W. 164

MULLIN

v.WHITE ET AL.

Supreme Court of Iowa.

June 6, 1907.

Appeal from District Court, Keokuk County; Byron W. Preston, Judge.

Suit in equity to subject real estate to the payment of a judgment. There was a decree for the plaintiff, from which the defendants appeal. Affirmed.J. D. Butler, for appellants.

J. M. Dower and Saunders & Stewart, for appellee.

SHERWIN, J.

Hannah Bigley died intestate in Keokuk county, Iowa, about August 1, 1903, leaving surviving her a husband, Patrick Bigley, and collateral heirs, among whom was Michael McGurk, who by reason of the death of said intestate became the undivided owner of a moiety of intestate's real estate. August 17, 1903, the plaintiff herein commenced suit against Michael McGurk in the district court of Keokuk county, Iowa, and caused a writ of attachment to issue therein and be levied upon an undivided one-sixth interest in the real estate of which said Hannah Bigley died seised as the interest of said Michael McGurk therein. The writ was levied August 17, 1903, notice thereof duly served, return made, and the proceeding duly entered upon the incumbrance book of said court. At the December, 1903, term of said court, the case was transferred to the district court of Pottawattamie county for trial, the transfer being made upon the application of McGurk, who claims to reside in said county. Pursuant to this order, a transcript of the proceeding was sent to that court, and a record of the transfer was duly made in the Keokuk county court. The plaintiff obtained a judgment against McGurk at the May term, 1905. Thereafter a transcript of the proceedings in the Pottawattamie court was duly filed in the Keokuk county court. On August 12, 1903, an administrator of the estate of Hannah Bigley was duly appointed and qualified. At the December, 1903, term of the district court of Keokuk county said administrator filed his application for an order authorizing him to sell all the real estate of said decedent for the purpose of paying debts of the estate and the expenses of the administration thereof, and on the 2d day of March, 1904, the court made an order directing and authorizing said administratorto sell all of the real estate of said decedent. In July, 1904, the administrator filed his report showing a sale of the land to the defendant, Ira White, and on the same day the district court approved said sale and ordered a conveyance of said premises to be made to the purchaser. The conveyance was thereafter executed and approved by the court, and a complete record thereof made. No notice of any kind of the application to sell the real estate was given to the plaintiff, and it is upon the failure to give such notice that he bases his contention that the order of sale was a nullity as to him. This action was thereafter commenced; the plaintiff filing a petition in two counts, the first count of which it is unnecessary to more particularly notice. The second count of the petition recognizes the administrator's sale and the claims against the estate, and the pro rata share thereof with which McGurk's interest was burdened, and asked that a special execution issue against the interest of McGurk in the real estate subject to his share of the charge against the entire estate, and that his judgment be declared a lien superior to the title of the defendant. This relief was granted; the court finding that McGurk's one-sixth interest in the estate was subject to a charge thereon amounting to $452.60, said amount being a pro rata share of the debts and charges against said one-sixth interest. The appellants contend that, although no notice of the application to sell was given to the plaintiff herein, he cannot assail the order in this action, that the court had jurisdiction to order the sale notwithstanding the lack of notice to the plaintiff, and that the...