Wharff v. Wharff, 48153
| Citation | 244 Iowa 496,56 N.W.2d 1 |
| Decision Date | 16 December 1952 |
| Docket Number | No. 48153,48153 |
| Parties | WHARFF v. WHARFF et al. |
| Court | Iowa Supreme Court |
Gordon K. Darling, Winterset, and Herrick & Langdon, Des Moines, for appellant.
Jno. N. Hartley, Winterset, and Jas. W. Hall, Des Moines, for appellee.
Daniel J. Gallery, Winterset, for interveners-appellees.
The sole question presented by this appeal concerns the right of third parties to intervene in a divorce action. On January 15, 1952, plaintiff filed his petition praying for a divorce from defendant. He described certain real estate in Madison county which he said was owned by himself and defendant; was improved by a motel property with a residence and a number of cabins, also by an oil station, and a sales barn; and prayed that all of said realty, except for the motel, be decreed to be his property.
The defendant answered, alleging as to the real estate that, while title was held in the names of plaintiff and defendant, it was purchased entirely with funds of the defendant and with money which she held in trust for her children by a previous marriage. She also cross-petitioned praying for a divorce from plaintiff, making substantially the same allegations as to the real estate and asking it be awarded to her in her individual capacity and as trustee for her children.
On March 6, 1952, Ernest W. Blake, Esther B. Nelson, John W. Blake, and Albert Jean Blake (the latter, a minor, appearing by Esther B. Nelson as next friend) filed their petition of intervention. It is therein alleged that prior to the marriage of plaintiff and defendant one Miller Blake, the grandfather of the intervenors, paid over to Hettie G. Blake (now Hettie G. Wharff, the defendant and the mother of intervenors) the sum of $21,500 to be held by her in trust for them; certain real estate was purchased by defendant with the trust funds, which was sold by plaintiff and defendant and the proceeds invested in other realty and personal property; plaintiff had knowledge of the trust agreement; and all of said property, including the real estate described in plaintiff's petition, should be impressed with a trust for the benefit of intervenors to the amount of $21,500, and it is so prayed. A copy of a trust declaration, dated April 19, 1943, by which Hettie G. Blake acknowledged her trust obligation to her children, the intervenors, in the sum of $21,500, to be paid from the proceeds of certain real estate therein described to each child proportionately upon coming of age or as soon thereafter as requested, is attached to the petition of intervention. Plaintiff moved to strike the intervenors' petition upon the grounds that no cause of action other than alimony may be joined with a divorce suit; intervenors' cause of action is to impress a trust which cannot properly be joined with a divorce action; the only proper parties to a divorce suit are the husband and wife and third parties cannot legally intervene; a suit to impress a trust is a separate and independent suit and cannot be joined with a divorce suit; the purported intervenors are mere interlopers, are third parties and wholly improper parties to intervene in or participate in a divorce suit between husband and wife; there is a misjoinder of causes of action and of parties. The trial court denied the motion to strike, and we granted plaintiff an appeal from the interlocutory order.
I. Section 598.2 of the Code of 1950, I.C.A., relied upon by plaintiff, says:
'An action for a divorce shall be by equitable proceedings, and no cause of action, save for alimony, shall be joined therewith.'
Rule 75, Iowa Rules of Civil Procedure, 58 I.C.A., provides:
'Any person interested in the subject matter of the litigation, or the success of either party to the action, or against both parties, may intervene at any time before trial begins, by joining with plaintiff or defendant or claiming adversely to both.'
It is plaintiff's contention that to permit third parties to intervene in a divorce action, even though they make no allegations as to the divorce itself but assert rights to property which is the subject of contention between the plaintiff and defendant, would be to sanction an improper joinder within the meaning of section 598.2, supra. We have held against this claim in the recent case of Linscott v. Linscott, Iowa, 51 N.W.2d 428, 430. Justice Mulroney for the court there analyzed this statute and determined that a joinder of actions is accomplished only when two or more causes are stated, or united, in the same declaration, complaint, or petition. Direct authority to this effect is cited.
Obviously, unless we are to overrule the Linscott case, which we consider sound, we must hold against plaintiff's contention at this point. The statute forbids joinders, but the cause of action set up by intervenors is not pleaded in the same declaration with plaintiff's petition or defendant's cross-petition. It is a separate cause set up in a separate declaration and so is not prohibited by section 598.2. Also, since there is no joinder there can be no improper joinder, or misjoinder.
II. Plaintiff further urges we have held that intervention in divorce cases is improper because of the statute referred to above or for other reasons. He cites Ross v. Ross. 205 Iowa 424, 216 N.W. 22. This was an action brought by the wife for divorce and to quiet title to certain realty. The father of the defendant husband intervened, asking title be quieted in him. He had apparently purchased the property for his son and daughter-in-law, and had retained title in his own name. This court remarked at the outset:
'Just how these two actions can be joined we do not quite understand, but, as no objection is made thereto, we proceed to treat the two cases submitted.'
The plaintiff thinks this is a holding that an intervention by third parties, as here, is an improper joinder. It is necessary to say only that even if the language means what plaintiff thinks it does, it was nothing more than dictum. No one objected to the procedure, and it was not necessary for the court to determine the question. But it is also apparent that there was an improper misjoinder involved in the Ross case, since the plaintiff in the same petition attempted to join divorce and quieting title actions. She came squarely within the rule now followed in the Linscott case, supra; so that it may well be that this was what Justice Albert, speaking for this court, referred to in the language quoted above. The case does not aid plaintiff.
Henriksen v. Henriksen, 205 Iowa 684, 686, 216 N.W. 636, holds only that actions for divorce and for an accounting may not be joined in the same petition. In Cooper v. Erickson, 213 Iowa 448, 452, 453, 239 N.W. 87, there was a holding that the intervenor was attempting to join causes cognizable in equity with suits at law, and that in any event the intervenor was in fact attempting to bring an independent action, and so...
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