Porter v. Heishman , 172 Iowa 732 ( 1915 )

Evans, J.

^uitaweTction ludgmentl re-mam action: The plaintiff brought her action as a judgment creditor of the defendant, Grace Heishman. The trial court dismissed her petition upon the merits. The judgment debtor appealed from the judgment which is the basis of this equitable proceeding, and has obtained a reversal thereof in this court. Porter v. Heishman, 154 N.W. 503.^*

Both appeals were submitted in this court at the same time. The reversal of the judgment in the main case leaves no judgment as a basis for the equitable proceeding (Code See. 4087), and the proceeding must therefore fail in any event. ■ We will not, therefore, inquire into the original merit of the proceeding as it was when plaintiff’s judgment was in force. We think, however, that, under the circumstances here appearing, the judgment of dismissal should be in abatement only, and not in bar to a future proceeding, if a judgment in the main case shall be hereinafter obtained. To this extent, the judgment of dismissal entered below will be modified, without inquiring into the merits of the ease as made in the lower court. It is therefore ordered that the plaintiff’s petition be dismissed, and her action abated for want of judgment in the main case, and that the judgment below be modified and affirmed accordingly at the cost of the appellant. —Modified and Affirmed.

Deemer, C. J., Weaver and Preston, JJ., concur.

* Pending on rehearing, and not yet officially reported.