Citation Numbers: 182 Iowa 362
Judges: Evans, Gaynor, Ladd, Preston, Salinger
Filed Date: 1/9/1918
Status: Precedential
Modified Date: 7/24/2022
II. After the, time for appealing from the order of July 10th had expired, and on the 29th of January, 1916, appellant tendered what is, in effect, both an answer to the report which was approved on July 10, 1915, and an amendment of objections to said report. This paper was stricken out, on objection “that the original objections were heretofore overruled by the court; that said report was approved by the court; that all things complained about in said amendment were adjudicated and that said amendment was not filed in time, as by statute provided.” This ruling was made on February 19, 1916. As notice of appeal was duly served on February 25th of that year, the appeal from this last action is timely. The question remains whether the stricken amendment was filed in time, and, if so, whether it is meritorious.
In view of this holding, In re Estate of Munger, 168 Iowa 872, relied on by appellant, is not in point. It declares the abstract proposition that all the authority an administrator has is what the statute gives, and that, if he makes an unauthorized contract, an ex-parte order approving same is invalid as against the estate, even though payment has been made according to such contract. The ruling here was not an ex-parte order.
Tharp v. Brenneman, 41 Iowa 251, contains a very strong implication that the service of notice, which appellant claims is defectively proven, is well proven;, and Wood v. Yearous, 159 Iowa 211, is irrelevant because it defines, what is proper proof of service of notice of the expiration of right of redemption from a tax sale. But we are not called upon to decide whether the notice of application for leave to mortgage was properly served. If the service were defective, that fact accomplishes no more than that the court erred in permitting the executor to mortgage. Contention was made in the contest upon the approval of the report
We do not base our conclusions upon cases like Pursley v. Hayes, 22 Iowa 11, Shawhan v. Loffer, 24 Iowa 217, and Tharp v. Brenneman, 41 Iowa 251, because these define what may not be done on collateral attack; and the second motion which was here stricken out was not a collateral, but a direct, attack. We find nothing in Eikenberry & Co. v. Edwards, 67 Iowa 14, that has any bearing on this controversy. Many cases are cited by the appellee for the proposition that, where an amendment raises a new issue, such amendment should not be received after a case is submitted and decided, and that, at all events, the striking out of an amendment is not reversible error, unless an abuse of discretion is made to appear. These deal with amendments to pleadings proper, and perhaps should not control an amendment of objections in probate. But, for reasons already stated, this point need not be decided.
Nor do we apprehend the force of citation by appellee of Hartkemeyer & Co. v. Griffith, 142 Iowa 694, and of Bicklin v. Kendall, 72 Iowa 490. The first decides no more than that a substituted pleading which is not filed until after entry of the judgment appealed from will not be considered on appeal. The last holds that, while amendment may be allowed after judgment, to conform, a pleading to other proceedings, yet, where an amendment by an intervener in an attachment case sets up new issues, it comes too late after judgment upon his original petition and a sale of the attached property.
We find no error, and the order appealed from must be • — Affirmed.