Tetzloff v. May
| Decision Date | 21 May 1919 |
| Docket Number | 32535 |
| Citation | 172 N.W. 446,186 Iowa 520 |
| Parties | AUGUST TETZLOFF, Appellant, v. GEORGE E. MAY, Administrator, PAULINE FEIL, Intervener, Appellees. AUGUST HAVENER, Appellant, v. GEORGE E. MAY, Administrator, PAULINE FEIL, Intervener, Appellees |
| Court | Iowa Supreme Court |
Appeal from Floyd District Court.--M. F. EDWARDS, Judge.
MOTION to dismiss an appeal, on the ground that the appellant did not authorize the appeal. Opinion states the facts. Motion sustained.--Appeal dismissed.
Motion Sustained, and appeal dismissed.
H. J Fitzgerald, for appellants.
J. C Campbell and F. & F. M. Lingenfelder, for appellees.
One branch of this case was before this court in 1911, and a decision rendered by Judge Weaver, found in 151 Iowa 441. In that case, it was held that a widow's statutory right to the payment of her allowance made for her support out of the lands of her deceased husband, is not subject to the lien of an attachment against her husband, levied in his lifetime.
It was again before this court in 1915, and it was again held that the widow's allowance for support is entitled to preference over the claims of attaching creditors. 172 Iowa 617.
After these cases were decided, the district court, on motion, set aside the allowance to the widow for her support, and from this she appealed. On this appeal, the action of the court was reversed, and the order of the lower court set aside. It was held that Section 3314 of the Code, allowing the court to set off to the widow a certain sum for her support, which might be increased or diminished, vests the court with some discretion under certain circumstances; that the action of the court in setting aside the allowance under the circumstances shown was an abuse of discretion, and the order setting aside the allowance was reversed. This case is reported in 181 Iowa 1253.
It appears that, before the third appeal was taken, involving the right of the court to set aside the allowance, the clerk paid to the plaintiff's attorney the amount of money in the hands of the clerk, without making any provision for the payment to the widow of her allowance. After this opinion was filed, and on the 27th day of February, 1918, Hon. T. S. Stevens, a member of this court, ordered a restitution of this money to the clerk for proper distribution, and in pursuance of said order, the money received by plaintiff's attorney was returned to the clerk under protest. A motion was then made to rescind the order of restitution. It seems to have been denied. The district court thereupon, on the 1st of April, 1918, adjudicated that the money so deposited, to the extent of $ 437.15, be set off to the widow as her allowance, and the clerk was directed to pay all the costs in the three cases in the Supreme Court and the two district court cases out of the balance, to all of which this plaintiff excepted. We refer to these opinions heretofore cited for a full statement of the facts leading up to the present controversy.
The widow has filed a motion to dismiss this appeal, and bases her right to have the appeal dismissed on the ground that the questions herein presented were adjudicated in the cases heretofore referred to, and in further support of her motion alleges that the party named as appellant in the record of the appeal, August Tetzloff, is in no manner a party to the appeal and did not authorize the appeal; that his name is used as appellant by his attorney without his knowledge and consent; that the record of the clerk shows that the clerk paid H. J. Fitzgerald, as attorney for the plaintiff, on the 5th day of January, 1915, the sum of $ 617.73, and that an order of restitution was made thereafter, and that Fitzgerald restored the same to the hands of the clerk, though he did it...
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