Newmire v. Maxwell

• Decision Date: 05 September 1968
• Docket Number: No. 53126,53126
• Citation: 161 N.W.2d 74
• Parties: Robert R. and Donna M. NEWMIRE, Plaintiffs, v. B. J. MAXWELL, Judge of the 8th Judicial District of Iowa, Defendant.
• Court: Iowa Supreme Court

Page 74

161 N.W.2d 74

Robert R. and Donna M. NEWMIRE, Plaintiffs, v. B. J. MAXWELL, Judge of the 8th Judicial District of Iowa, Defendant.

No. 53126.

Supreme Court of Iowa.

Sept. 5, 1968.

John D. Randall, Cedar Rapids, for plaintiffs.

Richard C. Turner, Atty. Gen., Robert N. Merillat, Special Asst. Atty. Gen., Ames, and O'Rieley & Rosser, Cedar Rapids, for defendant.

GARFIELD, Chief Justice.

We granted certiorari to review an order of defendant judge made April 23, 1968, requiring plaintiffs Robert R. and Donna M. Newmire to surrender possession to Iowa State Highway Commission on or before May 6 of property which included their dwelling taken by eminent domain for public highway purposes.

Plaintiffs' claims of illegality in making the order may be boiled down to one: it violates section 472.26, Code 1966, quoted infra.

I. In November 1966 plaintiffs were purchasing on contract property in Cedar Rapids part of which they occupied as a dwelling. The commission to assess damages for taking part of the property, including the dwelling, fixed them at $34,500. On trial in September 1967 of plaintiffs' appeal to the district court from the above award, it was increased $15,000 to $49,500.

In the meantime, as permitted by Code section 472.25, infra, the Highway Commission had deposited with the sheriff the amounts assessed by the condemnation commission, (frequently called the sheriff's jury) in favor of plaintiffs, the contract vendors and certain lienholders. On July 27, 1967 plaintiffs filed application in the district court to direct defendant (Highway Commission) to pay the amounts so deposited with the sheriff to the persons entitled thereto and as named on the check and for such other and further order as may seem necessary to the court.

The Highway Commission's resistance to plaintiffs' application just referred to called attention to the fact section 472.25 provides the court 'may direct that such part of the amount' of the deposit, 'as it finds just and proper, be paid to persons entitled thereto'; that under section 472.26 plaintiffs cannot be dispossessed from their dwelling until the damages from the taking have been finally determined and paid; if plaintiffs receive all the condemnation commission's award they will be compensated for property without giving possession of all of it which 472.25 does not contemplate; and that the highway project for which the land is being taken cannot feasibly be completed without possession of plaintiffs' homestead. Prayer of the resistance was that such order be entered as is right and just and fair to all parties and for such other and further relief as may seem necessary to the court.

On August 2, 1967 the court made an order on plaintiffs' application that the sheriff deliver the checks in his possession to plaintiffs' attorney for release of liens against the property and payment of any balance to plaintiffs; if upon trial of the appeal a lesser amount is awarded, the difference between such amount and that paid over shall be repaid by plaintiffs and upon failure so to do the Highway Commission shall have judgment against plaintiffs.

The order of August 2 further provided 'plaintiffs shall surrender possession of the buildings other than the home to defendant (Highway Commission) upon completion of the new buildings to be erected by plaintiffs and in any event no later than March 1st, 1968. * * * plaintiffs shall likewise surrender possession of their home no later than April 1, 1968. Subject to right of defendant to prior possession by operation of law.'

After trial of plaintiffs' appeal to the district court from the commissioners' award of damages and the overruling of the Highway Commission's motion for new trial, it appealed to this court and the appeal has not yet been submitted. Thereafter, on October 23, 1967, plaintiffs filed in the district court application to direct payment to them forthwith of the additional $15,000 there awarded them or to modify the order of August 2 by delaying surrender of possession of their home until 30 days after issuance of procedendo from this court if the district court award is affirmed or 30 days after final determination of the case if a retrial becomes necessary. The application asserted it would violate section 472.26 to dispossess plaintiffs of their dwelling until the damages have been finally determined and paid.

The Highway Commission's resistance to this last application alleged section 472.26 was called to the court's attention before the order of August 2 was made and the court then advised counsel on both sides it would order distribution of all funds in the sheriff's hands if they could agree on a date for surrender of possession of the business complex and home; that counsel did agree on the dates provided in the order; plaintiffs waived any right they had to rely on section 472.26; since the appeal to this court of the award of damages in the district court it was without jurisdiction to modify its order of August 2; the order was a final order insofar as it fixes the dates for possession of plaintiffs' property.

On April 5, 1968 the Highway Commission filed in the district court its application for issuance of a writ of possession to plaintiffs' property in accordance with the order of August 2, alleging that as required by section 472.30 infra it had deposited with the sheriff the additional $15,000 awarded by the district court jury and demanded possession of plaintiffs' property which they refused to surrender. Attached to this application was a stipulation that proper demand had been made upon plaintiffs for the surrender of their premises, they agreed to surrender possession of the property condemned other than the dwelling but refused to surrender the dwelling, relying on section 472.26.

Plaintiffs filed a long resistance to the Highway Commission's application for issuance of a writ of possession and reply to its resistance to plaintiffs' application to direct payment to them of the added $15,000 awarded in the district court or to modify the order of August 2. Plaintiffs admitted the deposit of the $15,000 with the sheriff, they were still (April 8, 1968) in possession of all their property and refused to vacate their dwelling until the damages were finally determined and paid as provided in section 472.26.

Plaintiffs alleged they received of the funds first deposited with the sheriff only about $9000 after payment of liens against the property; (we understand nearly half the $34,500 was paid the contract vendor); the times fixed by the order of August 2 for delivery of possession did not benefit plaintiffs because it provided 'Subject to prior possession by operation of law'; this provision was added to the order at the Highway Commission's insistence and constituted a repudiation by it of the agreement as to times for surrender of possession; plaintiffs raised no issue as to times for delivery of possession and the order of August 2 with respect thereto was therefore a nullity; the only way the Highway Commission could acquire possession of the dwelling was by paying over the amount allowed by the district court and dismissing its appeal to this court.

Plaintiffs substituted for the prayer of their application of October 23 a prayer that the court determine plaintiffs may be dispossessed only as section 472.26 provides.

On April 23 the district court ruled on plaintiffs' application of October 23 to direct payment of damages or modify the order of August 2nd with respect to date of surrender of the home and the Highway Commission's application for issuance of a writ of possession to put the Commission in possession. Deposit of the added $15,000, that plaintiffs were still in possession of the home, demand for surrender of all premises condemned and surrender of all except the home were stipulated.

The court ruled that since its order of August 2 was not appealed nor other independent action taken with respect thereto it was a final adjudication of the rights of the parties at that time and became the law of the case; whether the August order was by consent was immaterial since it was a court order and not a contract; plaintiffs should vacate the home and other property condemned on payment to them of the deposit of $15,000 on or before May 6, 1968; if the damages on final determination are less than the court jury's verdict of $49,500 plaintiffs shall repay the difference to defendant Commission and upon failure so to do it should have judgment against plaintiffs for such difference; subject to the foregoing provisions plaintiffs' application, filed October 23, to direct payment of damages was sustained but the part of the amended application to modify the order of August 2 with respect to date of surrender of the home was overruled and defendant Commission's application for issuance of writ of possession was sustained.

As stated at the outset, it is this order of April 23 which is now here on review by certiorari. Both the order for the writ of certiorari on May 3rd and the writ itself on May 6th stayed further proceedings in the district court with respect to right of possession of the homestead. Plaintiffs thus have retained possession of the home more than five months after the order of August 2 provided for its surrender.

II. Certiorari lies where a so-called inferior tribunal exercising judicial functions exceeds its proper jurisdiction or otherwise acts illegally. Rule 306 Rules of Civil Procedure.

'The action shall be by ordinary proceedings, so far as applicable.' Rule 317 R.C.P.

Plaintiffs' brief and argument asserts these three grounds of illegal action by defendant judge:

1. In making any order on August 2, 1967 with respect to surrender of possession of the home which would be contrary to the provisions of section 472.26.

2. In determining (on April 23, 1968) the order of August 2 was a final adjudication of the rights of the parties or that it would...