Coffin v. Eisiminger

| Iowa | Sep 6, 1888

Robinson, J.

— I. The appellee has filed a motion to dismiss the appeal for the following reasons: (1) Because no appeal lies from the order made in this cause; (2) because, the facts being conceded, the order made does not affect any substantial right of the appellant; (3) because the rights of appellant are in no way affected by said order.” This is a proceeding to enforce the payment of a sum of money which has been adjudged to be due in an action brought for that purpose. The order was a final one, and required appellant to pay over a given sum of money within a time fixed in the order. We think this involved a substantial right, from which an appeal may be taken. Code, sec. 3164. The motion to dismiss is therefore overruled.

II. Appellant insists that there is no authority in the law for this proceeding ; that it can afford no relief which the judgment against him had not already given that it imposes an unnecessary burden upon the ward ; and that no authority to institute it is shown. The district court now has original and exclusive jurisdiction of the persons and estates of those who require guardianship. Code, sec. 2312 ; Laws 1886, sec. 8, ch. 134. Guardians of the property of their wards manage their interests under the direction of the court. Code, secs. 2250, 2274. All money should be paid out under the direction of the court. Bates v. Dunham, 58 Iowa, 310. It may be said that the court had already ordered the payment of this money in the garnishment proceedings by the rendition of a judgment therein ; hence that the order made in this proceeding is a useless form. It is true that the same court rendered the judgment and made the order, but in one case it was acting as a court of general civil jurisdiction, while in the other it was acting as a probate court. In the first case the probate jurisdiction was neither invoked nor exercised. It was necessary for the probate court at some time to act upon the matter of using money to pay the judgment. Whether this could have been anything more than a matter of form, in view of the fact that judgment had already been rendered, we need not determine. It was the duty of the guardian to pay the judgment under the direction of the probate court. He failed to pay the judgment, and neglected to ask the instruction of the probate court in regard to it. Under these facts it was proper for plaintiff to obtain an prder to compel the guardian to perform his duty. It may be that this was not necessary, and that ample relief might have been obtained by other means ; but we regard it as one of the methods authorized by law for the collection of the judgment; and the record fails to disclose any fact which makes it improper in this case.

III. The judgment against the guardian was rendered on the sixth day of June, 1887. It is insisted by appellant that this proceeding cannot be maintained for the-reason that section 2521 of the Code forbids the bringing-of an action upon a judgment rendered by a court of.' record within this state within fifteen years after the rendition thereof, without leave of the court, and that suchi leave is not shown in this case. This i^ not an action within the meaning of that section, but is in the nature of a special proceeding auxiliary to the judgment. We discover no error in the record.

Affirmed.