Jenkins v. Shields , 36 Iowa 526 ( 1873 )

Day J.

— I. It is urged that when the motion to strike out the amendment was filed, nothing but that motion was before the court for consideration, and that the court had no right to reconsider his ruling sustaining the demurrer at a previous term. We conclude, however, that in this action, the court, under the circumstances of this case, did not err.

No trial upon the merits had been had, and no final judgment had been rendered. The matter of making up the issues in the case was still pending. There were but two courses which the court could pursue, if satisfied that an erroneous ruling respecting the issue had been made. One was to adhere to the. ruling already made, and for the sake of consistency make others equally erroneous, leaving the aggrieved party to make the correction npon appeal. The other was to abandon the wrong path as soon as it was found to be such, and to restore the injured party without delay or expense to his legal rights. The court chose the latter course. The motion to strike called upon him to act upon the subject-matter, and he had, as it seems to us,, then a right to act in accordance with his notions of law. If, therefore, the ruling now complained of is abstractly correct, it will not be reversed because the court at a previous term was of a different opinion. The only effect of the ruling of the court is to refuse to strike the amendment to the petition from the files. The court was not bound to strike it from the files merely because at á previous term he had erroneously held a similar petition insufficient in law. Our. holding is based upon the particular circumstances disclosed in the record, and the condition of the case at the time the ruling complained of was made. We do not sanction the doctrine that a nisi prius court may, at any time, upon its own motion, review and overturn a judgment finally rendered.

II. The only question which remains is as to the jurisdiction of the district court over the subject-matter of this action.

The facts upon which the plaintiffs claim relief are substantially these: That the administrator has suffered certain notes to remain uncollected until they have become uncollectible. That he has appropriated large portions of the assets to his own use. That he took into his possession one note which he never reported among the assets of the estate. That he canceled a mortgage given to secure certain notes, and released and discharged the debtors. That if he had any authority from the county court to cancel said mortgage and release said debtors, he procured the same through fraud. It is claimed that the circuit court has exclusive jurisdiction over the subject of this suit, and in support of this view we are referred to section 3, chapter 86, Laws 1868, conferring upon the circuit court exclusive jurisdiction over “ all matter relating to the probate of wills, the appointment and supervision of executors, administrators, etc., * * * the settlement of decedents’ estates, * * * and all proceedings for the examination or settlement of the accounts of executors, administrators and guardians.” This section confers upon the circuit court exclusive jurisdiction over the direction of executors in the discharge of their official duties, and the settlement of their accounts. To neither of these subjects does this action relate. The object of this suit is to render the administrator responsible upon his bond for non-feasance and for malfeasance in office. For the acts complained of the defendants are responsible upon their bond. If the only dereliction of duty for-which the administrator could be made responsible, was a refusal to account to the circuit court when properly cited, the positions of appellants would receive some, support. If the administrator has in fact, without fraud or mistake, made a final settlement and been discharged, this is a matter which he may plead in his defense, but the section referred to does not, in our opinion, oust the jurisdiction of the district court over the subject-matter of this action. See Clark v. Cress, 20 Iowa, 50; Cowin v. Toole, 31 id. 513.

The question whether this action should be upon the law side of the docket, though urged by appellants in the argument, is not presented by the record, and is not before us for determination.

In our opinion the district court did not err, and the judgment must be

Affirmed.