13 Iowa 40 | Iowa | 1862
— The father of respondent was divorced from the complainant by a decree of the District Court of said county, and in the decree it was ordered that certain property owned by the said husband be subjected to the payment of a certain sum of money to the complainant, as alimony. This sum was to be paid quarterly during the lifetime of complainant, and in case of a failure to pay the same? the property was to be sold as under a decree of foreclosure, and the proceeds applied to the payment of the installments that had become due. The husband died, and the son, the respondent in this case, became the owner of this property} subject to this incumbrance. Upon the 28th day of January, 1859, the complainant filed her bill in equity, representing that the sum of four hundred dollars was then due under this decree, and prayed that the property therein described, be subjected to the payment of said sum.
A final decree was entered up in favor of the complain ant on the 18th day of August, 1860, for the sum of $501-27 — this being the sum reported by a master as due, up to the quarter ending December 8th, 1859 — nearly eleven months after filing of said petition. The respondent appeals, and claims that the judgment is excessive.
The complainant asks for a judgment only for the sum of four hundred dollars. When the petition was filed, this was the full amount due. There was no prayer for a judgment, or a supplemental bill filed, asking for a foreclosure for the accruing installments, and equity will not furnish greater relief than is prayed for. See Cooper v. Fredericks, 4 G. Greene, p. 403. The court therefore erred in rendering
It is claimed by tbe counsel for appellee that tbis objection was not made in tbe court below, and cannot be raised for tbe first time in tbis court. If tbis was a case at law, tbis position would be a tenable one; tbis, however, is a proceeding in chancery, and it has been settled that tbe facts as well as tbe law of the case can be readjudicated by tbe Supreme Court, in chancery causes. See Pierson v. Wilson et al., 2 Iowa, 20. Appeals in chancery are beard in tbe supreme court de novo, tbe same as if it bad original jurisdiction of tbe cause, regardless of tbe decision of tbe court below. Austin & Spicer v. Carpenter, 2 G. Greene, 181, 135.
Appellant further complains of tbe taxation of $10 attorney’s fees as part of tbe costs of tbe case. In the special acts of tbe Eighth session of tbe General Assembly, page 34, it is provided that no attorney’s fee shall in any case be taxed as costs against tbe losing party. See Note in Revision, page 627.
Tbe decree of tbe district court is modified, and final judgment ordered to be entered in tbis court in favor of tbe complainant, for the sum of four hundred dollars, and a decree of foreclosure ordered as prayed for by complainant; no attorney’s fees to be taxed as part of tbe costs of tbe case. As thus modified, tbe judgment is affirmed, at the cost of appellee.
