155 Iowa 133 | Iowa | 1912
The proceeding grew out of the case of Jefferson v. Rust, which was heretofore in this court upon appeal; the opinion being found in 149 Iowa, 594. In that opinion, among other things, we said: “Defendant made some improvements upon the property and had paid taxes and other charges thereon, and has personally obligated himself to pay the mortgage now standing against it. These matters were not adjudicated by the trial court for the reason, we suppose, that plaintiff dismissed his action in so far as it involved an accounting for rents, profits, etc. We need not do more at this time than to say that defendant’s claims, if he had any, for improvements, taxes, etc., should not be regarded as determined in this suit. Neither should plaintiff’s rights to an accounting. These matters are, therefore, expressly reserved for further determination in a proper action.” The concluding part of the opinion was: “As thus modified, the decree will be affirmed, and the case will be remanded for this modification. Appellant, however, will pay the costs of this appeal. Modified and affirmed.” Pursxiant to this order, a procedendo issued to the district court in due course, in which reference was made to the modification, and the said court was directed to proceed as if no appeal had been taken. This was filed in the district court on March 27, 1911. The next term of the district court at Avoca where the original action had been brought commenced on April 11 of the same year, so that no order could be made on the procedendo until the sitting of that court for its April
The question as to whether or not defendant Eust was entitled to file a petition under the occupying claimant’s act could not well be determined upon such proceedings as were here instituted, nor is there anything of record indicating that his right to do so was challenged. True, plaintiff’s counsel in argument suggest that Eust was not entitled to file such a petition; and for this reason that the
Plaintiff’s main contention is that Rust was not entitled to file a petition as an occupying claimant. As already indicated, we do not think this question was before
The orders must be, and they are, each and all reversed, and the cause remanded for such rulings as accord with this opinion. — Reversed and remanded.