Walker v. Walker

• Decision Date: 18 October 1902
• Citation: 91 N.W. 908,117 Iowa 609
• Parties: C. L. WALKER v. ED. H. WALKER, Administrator of the estate of Eliza Walker, Deceased, Appellant
• Court: Iowa Supreme Court

91 N.W. 908

117 Iowa 609

C. L. WALKER v. ED. H. WALKER, Administrator of the estate of Eliza Walker, Deceased, Appellant

Supreme Court of Iowa, Des Moines

October 18, 1902

Appeal from Wapello District Court.--HON FRANK W. EICHELBERGER Judge.

JUDGMENT was obtained by defendant, as administrator of the estate of Eliza Walker, against the plaintiff, for $ 2,556.82 and costs, December 3, 1896, on a promissory note executed to deceased April 15, 1893. Execution issued, and the lots in controversy, occupied by plaintiff since 1888, were sold by the sheriff. The plaintiff asks that the sale be set aside and the title quieted in him. Defendant had redeemed from certain tax liens, and a lien was established in favor of him for the amount so paid, and otherwise relief was granted as prayed by plaintiff. The defendant appeals.

Affirmed.

McElroy & McElroy for appellant.

Jaques & Jaques for appellee.

OPINION

LADD, C. J.

The defendant offered in evidence a transcript of plaintiff's testimony given in a proceeding to remove him as executor of his mother's estate. To it was attached the certificate of the official reporter "that the foregoing transcript is a full, true, and complete transcript of my shorthand notes taken in the above-entitled cause." That portion of section 3777 of the Code of 1873, as amended by chapter 195 of the Acts of the 18th General Assembly, providing that the transcript, when certified by the reporter, "shall be admissible in any case in which the same are material and competent to the issue therein, with the same force and effect as depositions," was entirely omitted from the Code enacted in 1897. A substitute, differing in its provisions, will be found in chapter 9 of the Acts of the 27th General Assembly. Under this a transcript of the evidence, if duly certified, "when material and competent, shall be admissible in evidence on any retrial of the case or proceeding in which the same were taken and for the purpose of impeachment in any case, and shall have the same force and effect as depositions." This was not a retrial in which the transcribed evidence was introduced. Nor was the transcript offered for the purpose of impeachment. It was not, then, within the provisions of the statute.

II. The plaintiff had no property other than the lots in controversy and these had been occupied by him as a homestead since 1888. Unless the debt, then, for which they were sold, was contracted prior to that time, the sale under defendant's judgment was illegal and rightly set aside. The note on which the judgment was rendered bears date April 15, 1893, but defendant contends this was based on indebtedness created prior to 1888. In November, 1881 the deceased Eliza Walker, mother of these litigants, derived $ 9,204.30 from insurance on the life of her husband, who had died shortly before, and put it in the plaintiff's hands, to care and invest for her. At about the same time she executed a power of attorney, constituting him her true and lawful attorney "to loan on notes and mortgages, or otherwise safely invest, at interest, the money this day placed in his hands for investment, or which may hereafter be placed in his hands for investment; to collect the same, receive and receipt for same; giving him full power to...