Mussellman v. Mauk

Supreme Court of Iowa

Mussellman v. Mauk

18 Iowa 239

CourtSupreme Court of Iowa

DecidedApril 5, 1865

StatusPublished

Cited by3 cases

This text of 18 Iowa 239 (Mussellman v. Mauk) 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

Mussellman v. Mauk, 18 Iowa 239 (iowa 1865).

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Opinion

Lowe, J.

[240]*2401. Appeal: revenue stamps. [239]*239Thomas J. Mussellman filed and had allowed before the judge of the probate, a claim of $1,757t2/ó [240]*240against the estate of John S. Mussellman, deceased, From this allowance, H. L. Mauk, the administrator, appealed to the District Court. Under the Code, an appeal is to be taken within thirty days from the date of the decision, and is effected by claiming the same, and filing an appeal bond, conditioned according to law. This was done, and the bond and transcript of the proceedings were filed in the District Court of Lucas county. Neither the bond, transcript nor other paper connected with the appeal had upon them a government revenue stamp, for which cause mainly the counsel for the plaintiff below moved the court to dismiss the appeal, which motion was overruled. The plaintiff excepting, now insists in this court that the same was error.

The appeal to the District Court was taken on the 28th day of September, 1864, which was subsequent to the date of the new or amended Revenue Law, passed August 1st, 1864, which provides that “ writs or other process on appeal from justices’ courts or other courts of inferior jurisdiction to a court of record, shall be subject to a stamp duty of fifty cents,” &e.

We are inclined to adopt the construction the commissioner of internal revenue at Washington has given to the words, “ writs or other process,” which is, that they comprehend any instrument or paper whatever which in effect transfers a cause from an inferior to a superior court. The motion to dismiss, as made, fully covered this construction of the revenue law, and should have been sustained. In so holding, we intend to intimate no opinion upon the constitutionality of this part of the internal revenue law of the government, as no question upon that point was raised or discussed by counsel who argued the case.

The other question, with regard to the right of third persons to intervene in a cause after an appeal to the [241]*241District Court, raised by a motion to dismiss or strike the petition of intervention from the files, falls to the ground, as no appeal in contemplation of law had been taken. The j udgment below on said motion is

Eeversed.

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Lowe, J.

[240]*2401. Appeal: revenue stamps. [239]*239Thomas J. Mussellman filed and had allowed before the judge of the probate, a claim of $1,757t2/ó [240]*240against the estate of John S. Mussellman, deceased, From this allowance, H. L. Mauk, the administrator, appealed to the District Court. Under the Code, an appeal is to be taken within thirty days from the date of the decision, and is effected by claiming the same, and filing an appeal bond, conditioned according to law. This was done, and the bond and transcript of the proceedings were filed in the District Court of Lucas county. Neither the bond, transcript nor other paper connected with the appeal had upon them a government revenue stamp, for which cause mainly the counsel for the plaintiff below moved the court to dismiss the appeal, which motion was overruled. The plaintiff excepting, now insists in this court that the same was error.

The appeal to the District Court was taken on the 28th day of September, 1864, which was subsequent to the date of the new or amended Revenue Law, passed August 1st, 1864, which provides that “ writs or other process on appeal from justices’ courts or other courts of inferior jurisdiction to a court of record, shall be subject to a stamp duty of fifty cents,” &e.

We are inclined to adopt the construction the commissioner of internal revenue at Washington has given to the words, “ writs or other process,” which is, that they comprehend any instrument or paper whatever which in effect transfers a cause from an inferior to a superior court. The motion to dismiss, as made, fully covered this construction of the revenue law, and should have been sustained. In so holding, we intend to intimate no opinion upon the constitutionality of this part of the internal revenue law of the government, as no question upon that point was raised or discussed by counsel who argued the case.

The other question, with regard to the right of third persons to intervene in a cause after an appeal to the [241]*241District Court, raised by a motion to dismiss or strike the petition of intervention from the files, falls to the ground, as no appeal in contemplation of law had been taken. The j udgment below on said motion is

Eeversed.

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18 Iowa 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mussellman-v-mauk-iowa-1865.

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