Swan v. Harvey , 123 Iowa 192 ( 1904 )

Sherwin, J.

The -controlling question here is whether the trial court was without jurisdiction to grant the plaintiff farther time in which to make redemption, for, if it had this power, the facts and the history of the case fully warranted its exercise. The sole question for determination upon the original submission of the case was whether the plaintiff, as a judgment lien holder, was entitled to redeem at all; and, when that question was determined by a decree, the merits of the controversy between the parties was fully adjudicated, and the fixing of the time within which such redemption should be made was but an incident thereto, affecting in no way the real merits of the case, and wholly within the sound discretion of the count. Although the trial court lost jurisdiction of the suit when the appeal was taken, so far as the merits of the controversy were concerned, and could not thereafter acquire jurisdiction to re-try any of the issues, except upon the mandate of this court, it still had the chancery power inherent in a court of equity to change or modify its orders relating’ solely to the enforcement of such decree. Hartley v. Bartruff, 112 Iowa, 592; Dunton v. McCook et al., 120 Iowa, 444; Cadotte v. Cadotte, 120 Mich., 667 (79 N. W. Rep. 932); Tyler v. Shea, 4 N. D., 377 (61 N. W. Rep. 468, 50 Am. St. Rep. 660); 5 Encyclopedia Pleading & Practice 1057. See, also, Schlawig v. De Peyster, 83 Iowa, 328. That the orders appealed from relate solely to the enforcement of the decree cannot, we think, be seriously questioned.

The judgment of the district court is affirmed, and the plaintiff is given twenty days after the filing of this opinion in which to pay the amount adjudged necessary for redemption by the district court. In case the defendant refuses to accept the same, the amount may be deposited with the clerk of the district court for the defendant’s use, and such deposit shall be considered full redemption under this order.— Aeeirmed.