Winkleman v. Winkleman

• Decision Date: 04 February 1890
• Citation: 79 Iowa 319,44 N.W. 556
• Parties: WINKLEMAN v. WINKLEMAN ET AL.
• Court: Iowa Supreme Court

79 Iowa 319

44 N.W. 556

WINKLEMAN

v.WINKLEMAN ET AL.

Supreme Court of Iowa.

Feb. 4, 1890.

Appeal from district court Mahaska county; J. K. JOHNSON, Judge.

Action in equity for the adjudication of title to real estate. The facts are stated in the opinion.John F. Lacy and W. R. Lacy, for appellant.

Blanchard & Preston, for appellees.

ROBINSON, J.

This action was originally a proceeding in probate to obtain an order for the sale of real estate. In August, 1886, the plaintiff, as executor of the estate of John Winkleman, Sr., deceased, filed in the proper court a petition which alleged the death of said Winkleman, testate, and that his will, which had been admitted to probate, directed the sale of the property described in the petition, and the distribution of the proceeds among his heirs. The property described comprises two tracts of land, which contain in the aggregate about 51 acres. Notice of the proceeding was given to William A., Thomas A., Thomas J., H. C., B. F., and Samuel Winkleman. The four defendants last named and the plaintiff are the sons, and the two defendants first named are the grandsons, of said John Winkleman, Sr. The grandsons are minors, and appear by guardian. On the 7th day of September, 1886, they filed an answer and cross-petition. In that they allege that they are the sons of John S. Winkleman, who was a son of their said grandfather, and is now deceased. They further allege in their original cross-petition, and amendments thereto, that they are the only heirs of their father; that he furnished a large portion of the money paid for the land in controversy; that he lived on and cultivated and improved it until his death; that he helped to farm other lands which belonged to his father, and helped to care for and support his father and his father's family until his own death; that in consideration of the money paid, and the labor and support furnished, as aforesaid, it was agreed between their father and grandfather that the latter should, by will or other means, transfer to their father the title to the premises in controversy; that, in pursuance of said agreement, their grandfather, at some time in the year 1874, did, by gift verbally expressed, transfer and convey to their father the premises in controversy, with the intent to vest him with the full title thereto; that their father accepted said transfer, and at once took possession of the property so transferred, with the knowledge and consent of his father, and caused the same to be staked off, and from that time occupied it until his death, and, with the knowledge of his father, made valuable improvements upon it, and paid the taxes thereon, leased it to other parties, and in all respects treated it as his own; that their grandfather, in furtherance of his said agreement, made a will, dated December 24, 1874, by which he devised said premises to their father; that their father died in the year 1877; and that thereafter their grandfather, being improperly influenced thereto, attempted to revoke said devise by means of a codicil, and devise said property to his other children. They ask that they may be decreed to own the property. Their mother, the widow of John S. Winkleman, filed a petiton of intervention, in which she repeats substantially the averments of the cross-petition of her sons and asks that she and they be decreed to be the owners of the property in controversy. She is insane, and appears by guardian. A trial was had on the merits of the case, and a decree rendered in favor of the widow and sons of John S. Winkleman, deceased, adjudging them to be the absolute and unqualified owners of the property in controversy. The plaintiff and his brothers appeal.

1. After the arguments on the first appeal had been made, appellants applied to the district court for a nunc pro tunc order, to the end that the records of that court might show that a pleading entitled “Amended Reply and Answer to Petition of Intervention” was duly filed in that court. It was found by the court that the paper in question was placed with the files in the case some time in January, 1887, and that it was attached to the files of pleadings some time in that month, immediately preceding a paper which was filed the 12th of that month; that it could not state whether it had ever been presented to the clerk for filing or not; that it was not marked “Filed” by the clerk, and no memorandum of its filing had ever been entered in the appearance docket; that it was prepared at the office of one of the attorneys in the case, at a time when depositions were being taken. The order prayed for was denied, and the applicants for the order appeal. It is agreed that the appeals be submitted together. It was held in Nickson v. Blair, 59 Iowa, 531, 13 N. W. Rep. 641, that the failure of the clerk to make the required entry in the appearance docket was fatal, even though the paper had been lodged in his office, and marked “Filed.” Following that rule, the action of the district court in overuling the motion must be held to have been correct. The paper had not been filed in fact, within the meaning of the law; and the record should...