Ratigan v. Ratigan

• Decision Date: 21 November 1917
• Docket Number: No. 30387.,30387.
• Citation: 181 Iowa 860,165 N.W. 85
• Parties: RATIGAN ET AL. v. RATIGAN ET AL.
• Court: Iowa Supreme Court

181 Iowa 860

165 N.W. 85

RATIGAN ET AL.

v.RATIGAN ET AL.

No. 30387.

Supreme Court of Iowa.

Nov. 21, 1917.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Supplemental opinion on rehearing. Modified.

For former opinion, see 162 N. W. 580.John M. Galvin and H. L. Robertson, both of Council Bluffs, for appellants.

I. N. Flickinger, Clifford Powell, and Tinley, Mitchell & Pryor, all of Council Bluffs, for appellees.

SALINGER, J.

I. The trial judge found that the father of Patrick Ratigan, with the consent and acquiescence of the son, sold and conveyed to one Setz 40 acres of the tract involved in this suit, to wit, the northwest quarter of the northwest quarter of section 34; that he received therefor $3,600, out of which he subsequently paid $1,000 to extinguish debts owing by the son, and it ordered that the plaintiffs have of the said Patrick J. Ratigan, Sr., the sum of $2,600, together with interest at 6 per cent. from the 5th day of November, 1913. We held that this finding was sustained by the evidence. We are asked to reconsider this holding on the claim that the evidence does not sustain this finding. The appellees counter that this claim is “now set up as the basis for the reversal of the personal judgment for the first time in this case.” The record does not sustain this assertion. The very point now urged to induce us to reconsider was fairly made in the presentation on original submission.

II. There crept into our opinion a statement that the father raised the $1,000 which he applied on debts of the son out of part of the land covered by the deed from son to father, which we have impressed with a trust, and which said part the father sold to Setz with the acquiescence of the son. There is no conflict in the testimony, and plaintiff Anna Ratigan herself is one witness who makes it clear that this $1,000 was raised on the father's own land “across the road,” and on an 80 which he bought from Day and Hess, and that the payment to the creditors was made about seven years before any land was sold by the father to Setz. We find on reconsideration that as to this the original opinion has an erroneous statement, and that the money was raised on land which the son never owned, and that the son did not acquiesce in said sale to Setz. But this error is clearly not a prejudicial one. The trial court credited the father with this $1,000. This being done, it becomes immaterial where the father obtained the money, and whether the son consented to the sale to Setz. In either view the father could but...