141 Iowa 574 | Iowa | 1909
On the face of it, this case is very complicated in its facts and legal questions. A condensed statement of the pleadings alone covers seventy-five printed pages in the abstract, and the case'is submitted to us upon briefs covering more than three hundred and fifty pages. At the heart of it, however, there is less complication. It involves the question whether a surety on a new executor’s bond, ordered by the court for the stated purpose of discharging the original bond because of 'the death of the surety thereon and the pendency of his estate in probate, may nevertheless require contribution from the estate .of the surety on the first bond; and, if so, whether such contribution may be worked out after the closing of such first surety’s estate through the beneficiaries thereof, such beneficiaries being also the obligees and beneficiaries of the bond of the last surety. It involves the question, also, whether a supersedeas bond, filed by the executor on appeal to the Supreme Court, from the judgment of the lower court fixing his liability, is primarily liable for the
On or about May, 1883, one Lewis was appointed by the district court of Polk County as executor of the estate of L. S. Wyman. He executed a bond for $5,000, with John Wyman, surviving husband of L. S. Wyman, as his surety. Mrs. Wyman left as the beneficiaries of her estate an infant son, Arthur Wyman, and two daughters, Anna and Nettie, who will be referred to in this opinion as the Wyman heirs. The estate was kept open and pending until the youngest child should become of age, which majority occurred shortly prior to May, 1904. In the meantime, in May, 1903, John Wyman died testate, in Polk County, leaving surviving him his widow, Bina M., and the three children of L. S. Wyman, already named, and Mabel Wyman, a daughter of the second marriage, all of which were left as beneficiaries of his estate. Defendant Bowen was appointed by the district court of Polk County as executor of his will soon after his death. In pursuance of section 3268 of the Code, the clerk of the district court, in January, 1904, noted his disapproval of the executor’s bond in the L. S. Wyman estate, because of the death of the surety and because his estate was being
On February 16, 1907, the executor, Lewis, filed a supersedeas bond in his appeal to the Supreme Court, and thereby stayed all proceedings pending the appeal. Thereupon the Wyman heirs dismissed without prejudice their application for summary judgment, and all proceedings in the lower court slept for the time being. On May 8, 1907, the judgment of the lower court was affirmed on appeal, the appellant having failed to file an abstract within the statutory time, and judgment was then entered against the United States Fidelity & Guaranty Company, the surety on the supersedeas bond. Upon this judgment execution issued. Thereupon, on May 11, 1907, the complainant, Bankers’ Surety Company, paid in to the clerk of the district court the amount -adjudged against the supersedeas bond in the Supreme Court, and at the same time filed an amendment to its petition, making the clerk of the district court and the sheriff of Polk County, and the clerk of the Supreme Court, all parties defendant, and asking for a temporary injunction to restrain the collection of the judgment of tire Supreme Court upon the supersedeas bond, and to restrain the clerk of the district court from paying out to the Wyman heirs -the money which the complainant had itself páid in. ■ It obtained a temporary injunction to this effect, which was continued in force until the hearing of the case upon its final merits. In this amendment the complainant Bankers’ Surety Com-.
No judgment has been entered in this case against the appellant, nór are the beneficiaries of the bond pressing any proceedings against it. For the present they choose to rely upon the supersedeas bond. True, the appellant did of its own accord pay in to the clerk of the district court the alleged amount necessary to discharge the liability of the executor, but it immediately tied it there with a temporary injunction. That injunction having been dissolved by the decree of the lower court, and the judgment against the United States Fidelity Company being still in forcé in this court, the appellant urges that the beneficiaries will reap a double satisfaction of their judgment. We shall have little trouble in protecting the appellant by proper order against a double payment.
The Wyman heirs are not now proceeding against the appellant surety company. The real question before us is whether the plaintiff may maintain its manifold injunctions against the various officers of the district court and of this court, and whether it can restrain the collection of the judgment entered in this court against the surety on the supersedeas bond. We hold that it can not.
The trial court rightly dissolved all the injunctions and dismissed plaintiff’s petition. Its decree is therefore affirmed.