State ex rel. McPherson v. Rakey

• Decision Date: 16 October 1945
• Docket Number: 46703.
• Citation: 20 N.W.2d 43,236 Iowa 876
• Parties: STATE ex rel. McPHERSON v. RAKEY.
• Court: Iowa Supreme Court

20 N.W.2d 43

236 Iowa 876

STATE ex rel. McPHERSON v. RAKEY.

No. 46703.

Supreme Court of Iowa

October 16, 1945

J F. Hudson and Frank W. Oertel, both of Keokuk, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and John F. Burrows, Co. Atty., of Keokuk, for appellee.

GARFIELD Justice.

After the appeal was taken, plaintiff filed a motion to dismiss it on the ground that in this form of proceeding no right of appeal to this court is granted by any statute or rule of this court. We held that plaintiff was not entitled to have its motion considered because it was not served within the time required by Rule 348(a), Rules of Civil Procedure. See 18 N.W.2d 529.

In brief and argument, plaintiff renews its contention that no appeal lies in this form of action. Since this is a question that goes to our jurisdiction to entertain the appeal, it is our duty to pass upon it now, notwithstanding the disposition made of plaintiff's motion to dismiss. Crowell v. Home Mut. Ins. Co., 233 Iowa 531, 10 N.W.2d 69; Eby v. Phipps, 225 Iowa 1328, 283 423, and cases cited; Barber v. Shattuck, N.W. 207 Iowa 842, 223 N.W. 864; 4 C.J.S., Appeal and Error, p. 1979, § 1368.

We think this appeal should be entertained. The right of appeal exists by virtue of statute. Wissenburg v. Bradley, 209 Iowa 813 821, 229 N.W. 205, 67 A.L.R. 1075, and cases cited; 4 C.J.S. Appeal and Error, p. 61, § 1; 2 Am.Jur. 847, section 6. Rule 331(a), Rules of Civil Procedure, with the force and effect of statute, provides: 'All final judgments and decisions of courts of record may be appealed to the Supreme Court, except as provided in this Rule and in Rule 333.' The stated exceptions clearly have no application here. Unquestionably this appeal is from a final judgment and decision of a court of record. It falls squarely within the language of Rule 331(a). To say that no appeal lies here, is to assert that Rule 331(a) does not mean what it plainly states.

It may be claimed that Rule 331(a) allows only such appeals as might be taken under sections 12822, 12823, Code 1939, prior to the adoption of the rule. Without in any way holding that the rule is so limited, we may observe that under section 12823 (par. 2) an appeal could be taken from 'A final order made in (a) special action affecting a substantial right therein.' The adjudication here is such an order. That this is a special action is plain from Code sections 10938, 10939. See as bearing on this question State v. District Court of Hennepin County, 185 Minn. 396, 241 N.W. 39.

We have held, and properly so, that where a special statute excludes the right of appeal in certain proceedings it will control over a general statute authorizing appeals. State ex rel. Rankin v. Woodbury County, 231 Iowa 356, 1 N.W.2d 223; State ex rel. Fletcher v. Webster County, 209 Iowa 143, 227 N.W. 595; Lampson v. Platt, 1 Iowa 556, Clarke 556. But there is no provision in chapter 171 which excludes the right of appeal, either expressly or by necessary implication, in such a proceeding as this. We do not overlook sections 3438-3443 which provide a remedy for securing a discharge from an institution. We will discuss these sections later. We are cited to no case and find none where we have ever refused to entertain an appeal from a final order in a special action unless a special statute plainly excludes the right of appeal.

Section 3422 in Ch. 171 provides: 'The hearing on the allegations of the petition shall be as in equitable proceedings.' This provision is inconsistent with the claim that no appeal lies from a decision made following such a trial. The legislature had some purpose in enacting 3422. It is reasonable to conclude that trial as in equity was required so there might be trial de novo upon appeal.

In Wilson v. Shorick, 21 Iowa 332, it was held that an appeal to the district court would lie, under a general statute, from an order of the county court appointing a guardian based on a finding of unsoundness of mind. The general statute was section 267 of the Revision of 1860, which provided that an appeal is allowed, except when otherwise stated, 'from all decrees and decisions of the county court on the merits of any matter affecting the rights or interests of individuals as distinguished from the public.'

There was no special provision for appeal in Wilson v. Shorick. It was claimed there was no right of appeal and that the petitioner's remedy was to secure the termination of the guardianship under section 1457 of the Revision, somewhat similar to a petition for discharge from commitment to an institution under sections 3438-3443 of the present chapter 171. (The old statute also preserved the right of habeas corpus--sec. 1441, Rev. '60.) But this court held the right of appeal existed under the general statute. This is from the opinion at pages 334, 335 of 21 Iowa:

'* * * but it is claimed that the remedy of the petitioner is by another proceeding. It is provided, by Revision, section 1457, that whenever the probate judge (County Court) shall be satisfied that a lunatic is restored to reason, or that letters of guardianship have been improperly issued under this act, he shall make an entry upon the records of his court that said guardianship terminate, and the guardianship shall thereupon cease, and the accounts of the guardian shall be settled by the court.

'It is probably true that the plaintiff in this first proceeding might obtain as full and complete remedy under the provisions of this section, as he can by an appeal; but this fact does not by any means deprive him of his right to appeal. In other words, this section does not expressly, nor by necessary implication, take away the right of appeal, which is clearly given by the general law as to appeals, before cited, and that right therefore remains to him. (Citing cases.)'

In George v. Parker, 16 Iowa 530, it was held that a guardian of minors had the right of appeal to the district court under section 267 of the Rivision, above referred to, from an order of the county court removing him as guardian. In Porter v. Butterfield, 116 Iowa 725, 728, 89 N.W. 199, we held that an appeal would lie to this court, under the general statute, from a determination by the district court of the sufficiency of statements of consent to the sale of intoxicating liquors. The statute involved was section 4101, Code, 1897, identical with section 12823, par. 2, Code, 1939, which authorized an appeal from 'a final order made in special actions affecting a substantial right therein.'

Proceedings under chapter 171 are somewhat analogous to those under chapter 177 for the commitment of insane persons by the commission of insanity. Section 3560 in chapter 177 provides for an appeal to the district court from the finding of the commission but the chapter contains no provision for appeal from the district court to this court. Chapter 177 also provides a special remedy for the discharge from confinement of any person previously committed (section 3570-3576). This special remedy is analogous to the remedy provided by sections 3438-3443, chapter 171, for the discharge from confinement of a person committed to an institution for feeble-minded under chapter 171. Section 3577 in chapter 177 also specially preserves the remedy of habeas corpus just as section 3438 in chapter 171 does. This court has entertained appeals from findings of insanity by the district court under chapter 177. In re Harmsen, Iowa, 167 N.W. 618; In re Fleming, 196 Iowa 639, 195 N.W. 242. See also In re Brewer, 224 Iowa 773, 276 N.W. 766. So far as our reports show, our right to entertain such appeals under chapter 177 has never been questioned.

An adoption proceeding is another special action in which no appeal is authorized by special statute. We have uniformly entertained appeals in adoption matters. Adoption of Alley, 234 Iowa 931, 14 N.W.2d 742, 745, 746, and cases there cited, where we said: 'So far as our reports show, our right to do so has never before been questioned.' Plaintiff in effect seeks to commit the court to the views expressed in the dissenting opinion in the Alley case.

Barnes v. Paanakker, 72 App.D.C. 39, 111 F.2d 193, 194, 195 (Vinson, J.), holds that an appeal lies under a general statute similar to our Rule 331(a) from a denial of a petition to adopt minors. The court says:

'Although there is some slight sanction for this contention (citing Meyers v. Mevers, 32 Ill.App. 189, and In re Hughes, 88 Okl. 257, 213 P. 79), in many, if not most, states appellate jurisdiction is exercised over adoption proceedings through appeal (citing several cases), writ of error, or certiorari. Moreover, we are of the opinion that the more persuasive authority takes the view that an appeal will lie, under a general appeals statute, from a final order or decree of a lower court entered in adoption proceedings. (Citing cases.)'

Meyers v. Meyers, referred to in the foregoing excerpt, was, as stated in the Barnes case, decided on the authority of People v. Gilbert, 115 Ill. 59, 3 N.E. 744, to which we later refer. In re Hughes, to which the Barnes opinion refers, is cited in the dissent in Adoption of Alley, supra. The Barnes case says: 'The status of In re Hughes, supra, as an authority on this question is, therefore, somewhat dubious.'

We have also entertained appeals from final orders of the juvenile court, in the absence of any special statute authorizing such appeals. State v. Johnson, 196 Iowa 300, 194 N.W. 202. See also In re East Minors, 143 Iowa 370, 122 N.W. 153.

To refuse to entertain this appeal would be a reversal of the position we have taken in appeals from findings of insanity by the district court under chapter 177, from decrees of adoption and from final orders of ...