McDonald v. Des Moines Valley R'y Co.

Supreme Court of Iowa

McDonald v. Des Moines Valley R'y Co.

16 N.W. 89, 61 Iowa 192

DecidedJune 9, 1883

StatusPublished

This text of 16 N.W. 89 (McDonald v. Des Moines Valley R'y Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDonald v. Des Moines Valley R'y Co., 16 N.W. 89, 61 Iowa 192 (iowa 1883).

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Opinion

Adams, J.

— If the appellant is a proper party to this proceeding at all, and can properly .be charged with the costs, as it was, it must be because the original decree was adverse to it. Upon no other possible theory was the appellee entitled to an order of substitution as against the appellant. Since, therefore, the court did make the order of substitution as against the appellant, and charge it with costs, the natural, if not the inevitable, inference, must be, we think, that the court found that the appellant is adversely affected by the original decree. Now, this it might do (provided the proceeding by motion is proper, which we do not determine), if the facts justified. The apj>ellee claims in his argument that the appellant has no other title than by deed from' the Des Moines Talley E’y Co., executed subsequently to the rendition of the decree in question. If such were the fact, and it so appeared, then the order of substitution'as against the appellant would doubtless be correct. But the appellee’s difficulty is that he has introduced no evidence of such fact. If, on the other hand, the appellant holds under the foreclosure of a deed of trust, executed by The Des Moines Talley E’y Co., and recorded before the commencement of the appellee’s action against the company to quiet title, and that company alone was made defendant, it would seem clear that the appellant is not adversely affected by the decree in that action. So far as the appellant-is concerned, the decree would have no [194]*194more efficacy than so much blank paper, and appellant should not have been made a party to this proceeding, and having been improperly brought in, should have been dismissed without costs, or the order of substitution should have been entered without prejudice to it, and without costs. Now, while we are not prepared to say that the facts are precisely as the appellant claims, we have to say that they are not affirmatively shown to be otherwise, and the burden of proof was upon the appellee. There is no pretense that the appellant was a party to the decree in question. The most that can be claimed is that the appellant holds under some one who was a party to it, and in such a way as to be affected by it. But such fact was not shown, and without such showing, we think that the appellee was not entitled to a substitution as against the appellant, and at its costs.

Reversed. •

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Adams, J.

— If the appellant is a proper party to this proceeding at all, and can properly .be charged with the costs, as it was, it must be because the original decree was adverse to it. Upon no other possible theory was the appellee entitled to an order of substitution as against the appellant. Since, therefore, the court did make the order of substitution as against the appellant, and charge it with costs, the natural, if not the inevitable, inference, must be, we think, that the court found that the appellant is adversely affected by the original decree. Now, this it might do (provided the proceeding by motion is proper, which we do not determine), if the facts justified. The apj>ellee claims in his argument that the appellant has no other title than by deed from' the Des Moines Talley E’y Co., executed subsequently to the rendition of the decree in question. If such were the fact, and it so appeared, then the order of substitution'as against the appellant would doubtless be correct. But the appellee’s difficulty is that he has introduced no evidence of such fact. If, on the other hand, the appellant holds under the foreclosure of a deed of trust, executed by The Des Moines Talley E’y Co., and recorded before the commencement of the appellee’s action against the company to quiet title, and that company alone was made defendant, it would seem clear that the appellant is not adversely affected by the decree in that action. So far as the appellant-is concerned, the decree would have no [194]*194more efficacy than so much blank paper, and appellant should not have been made a party to this proceeding, and having been improperly brought in, should have been dismissed without costs, or the order of substitution should have been entered without prejudice to it, and without costs. Now, while we are not prepared to say that the facts are precisely as the appellant claims, we have to say that they are not affirmatively shown to be otherwise, and the burden of proof was upon the appellee. There is no pretense that the appellant was a party to the decree in question. The most that can be claimed is that the appellant holds under some one who was a party to it, and in such a way as to be affected by it. But such fact was not shown, and without such showing, we think that the appellee was not entitled to a substitution as against the appellant, and at its costs.

Reversed. •

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16 N.W. 89, 61 Iowa 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-des-moines-valley-ry-co-iowa-1883.