Salomon v. Newby
| Decision Date | 21 January 1930 |
| Docket Number | 39848 |
| Citation | 228 N.W. 661,210 Iowa 1023 |
| Parties | ELIAS SALOMON et al., Petitioners, v. MILES W. NEWBY, Judge, Respondent |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 23, 1930.
Certiorari to Woodbury District Court.--MILES W. NEWBY, Judge.
Action in certiorari, brought in this court to review orders entered by the respondent, as judge of the district court of Woodbury County, Iowa, in a certain partition suit and in certain proceedings in probate.--Writ dismissed and orders affirmed.
Writ dismissed and orders affirmed.
F. W Lohr and Everette Waller, for petitioners.
D. F Loepp, for respondent.
FAVILLE J. MORLING, C. J., and EVANS, STEVENS, DE GRAFF, and WAGNER, JJ., concur, KINDIG, ALBERT, and GRIMM, JJ., specially concur.
This action is brought by a party who has had a guardian appointed for him, as an incompetent, and by a guardian ad litem, who was appointed in a partition proceeding.
On or about the 19th day of June, 1928, the petitioner Elias Salomon presented his own petition to the district court of Woodbury County, Iowa, alleging that he was the owner of certain property, and was unable to look after the same, and praying that one Lebeck be appointed guardian of his property. On the 19th day of June, 1928, said Lebeck was duly appointed guardian of the property of Salomon. Lebeck furnished his bond, and qualified as such guardian, and proceeded to file inventory and administer the estate of the said Salomon. Said proceedings were entitled in the district court: "In the Matter of the Estate of Salomon, Incompetent, No. 8641, In Probate."
On or about the 24th day of August, 1928, Lebeck, as such guardian, brought an action in partition in the district court of Woodbury County, said action being Equity Cause No. 54923. It was alleged in said action that said Salomon was the owner of an undivided one-half interest in certain described real estate, and that Salomon's wife was the owner of the other undivided one-half interest. The wife was made a party defendant, as were the children of said parties, and a creditor claiming a lien upon said property. Salomon was also made a party defendant in said action. The petitioner Lohr was appointed guardian ad litem in said partition suit on October 13, 1928, and filed an answer. The wife and son of Salomon filed an answer, and certain of the children of Salomon filed a petition of intervention. The cause was assigned for trial November 21, 1928. It appears that, on said date, at the time assigned for trial, all of the parties were present in court, and at said time the respondent judge retired to his chambers with said parties for a conference. All of the members of the family of Salomon were present, as were Salomon and his guardian. The record discloses that a conference was there had among the several parties.
The record discloses that at said time the estimated value of the real estate involved in said partition suit was about $ 8,000, and that the partition suit was really brought for the purpose of securing funds with which to pay a debt of about $ 125 to the guardian for money which he had advanced for the benefit of the ward. It appears that the object of the conference in the judge's chambers, among the different members of the family of Salomon and a friend of the family's, was to devise some plan by which the partition suit, with the resulting sale of the real estate, could be avoided, and the guardian paid the amount due him, and he could be dismissed. At said conference the daughters of Salomon agreed to pay said guardian the sum of $ 25 within a few days, and the balance of his claim shortly thereafter, upon condition that the partition suit should be dismissed and the guardian discharged. The parties agreed that, if said money, amounting to about $ 125, was so raised and paid to the guardian, he would file his final report and be discharged, and the partition suit would be dropped. In pursuance of this agreement, the court then made the order that said cause "be continued until certain conditions are complied with, which being fulfilled, the cause should be dismissed." The attorneys for Salomon and the guardian ad litem in the partition proceedings were not present at this conference held in the chambers of the judge. After said compromise and settlement had been made among the several parties, as described, it appears that the money was secured and paid to the guardian, and he filed his final report, and in said final report stated that he had commenced the partition suit, and that the same "is pending at this time before this court." In an amendment to said final report the guardian stated that, at the time said partition action came on for hearing, the court "instructed this guardian and it was understood that he would voluntarily resign, and apply for his discharge as guardian, upon receipt of $ 125 to cover money advanced by this guardian, and his fee in said matter," and further stated that it is the wish of the family of Salomon that the guardianship be not terminated, but that another guardian be substituted. On December 17, 1928, said final report came on for hearing before the respondent judge, and said judge at said time made an order in said proceedings in probate, approving the said final report and ordering the discharge of said guardian and the appointment of a new guardian. Subsequently, to wit, on December 27, 1928, the respondent judge entered an order in said partition action, which recites that:
"The conditions for settlement of this cause entered into under date of November 21, 1928, having been complied with by payment as agreed of the sum of $ 125 by defendant to plaintiff, as guardian, and said guardian procuring his discharge by filing his final report and obtaining the court's approval thereof, it is ordered by the court that this cause of action be and is hereby dismissed with prejudice, and the costs of this action, taxed in the sum of $ , be and are hereby charged to the guardianship estate in probate."
I. Petitioners urge that the order of continuance was illegal. The court did not exceed his jurisdiction in making said order. The continuance became an accomplished fact. There is nothing for us to review, except the question of the power of a court to order a continuance of a case. Such power is so fundamental that a statement of the proposition is all that is necessary.
II. Petitioners contend that the respondent acted illegally and without jurisdiction in the partition action in "dismissing said cause and taxing the costs to the guardianship estate in probate." The record shows that the partition suit was continued, pending the carrying out of the agreement regarding the payment to the guardian and his discharge. All this was done before the order of dismissal was made in the partition suit, and all with the knowledge of the respondent judge, and under his express approval.
Undoubtedly it would have been a better procedure to have had the entire situation set out in the record. The order of continuance made at said time expressly provided that the cause was "continued until certain conditions are complied with, which being fulfilled, the cause to be dismissed." The conditions which were to be complied with were fully disclosed and known to the respondent, who made said order. In a short time thereafter, the conditions were complied with, the money required to be paid to the guardian was raised and paid to him, and he filed his final report, setting forth said matter and referring to the fact of the pendency of the partition suit. He asked that he be discharged as guardian, all...
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