134 Iowa 681 | Iowa | 1907
Hannah Bigley died intestate in Keokuk county, Iowa, about August 1, 1903, leaving surviving her a husband, Patrick Bigley, and collateral heirs, among whom was Michael McGurk, who by reason of the death of said intestate became the undivided owner of a moiety of intestate’s real estate. August 17, 1903, the plaintiff herein commenced suit against Michael McGurk in the district court of Keokuk county, Iowa, and caused a writ of attachment to issue therein and be levied upon an undivided one-sixth interest in the real estate of which said Hannah Bigley died seised as the interest of said Michael McGurk therein. The writ was levied August 17, 1903, notice thereof duly served, return made, and the proceeding duly entered upon the incumbrance book of said court. At the December, 1903, term of said court, the case was transferred to the district court of Potawattamie county for trial, the transfer being made upon the application of McGurk, who claims to reside in said county. Pursuant to this order, a transcript of the proceeding was sent to that court, and a record of the transfer was duly made in the Keokuk county court. The plaintiff obtained a judgment against McGurk at the May term, 1905. Thereafter a transcript of the proceedings in the Pottawattamie court was duly filed in the Keokpk county court. On August 12, 1903, an administrator of the estate of Hannah Bigley was duly appointed and qualified. At the December, 1903, term of the District Court of Keokuk county said ad
The appellants contend that, although no notice of the application to sell was given to the plaintiff herein, he cannot assail the order in this action, that the court had jurisdiction to order the sale notwithstanding the lack of notice to the plaintiff, and that the plaintiff’s only remedy was by a direct attack upon the order of sale. Code, section 3324, provides as follows: Before any order for the sale of an
In support of their contention, the appellants chiefly rely upon Spurgin v. Bowers, 82 Iowa, 187, and at first blush the case appears to be authority for their contention, but a careful anaylsis of that case shows that it is distinguishable from the case at bar. There a sale was made without notice, and it was claimed that the entire order should be set- aside and the sale itself be declared null and void because of the want of notice. This is made to appear very clearly from the language of the opinion, and the court refused to grant