149 Iowa 685 | Iowa | 1910
This case was before us on a former appeal. Orke v. McManus, 142 Iowa, 654. At that time the plaintiff was the appellant and the intervener was the appellee. The issues in the case, as shown in the former appeal, must be briefly stated. The plaintiff sued McManus for the purchase price of certain property. The intervener filed a petition of intervention, setting up its ownership of the property sold to McManus. It,ratified the sale to McManus, but asked to recover the purchase price thereof in lieu of the plaintiff. McManus conceded his liability to the plaintiff unless he was liable to the intervener, and asked only that he be protected against double liability. The issues were so framed as to present a controversy between plaintiff and intervener alone. The right of recovery being established in one necessarily negatived the right of the other. The lower court upon that trial found in favor of the intervener, and entered judgment in its favor against McManus for the purchase price, and dismissed the petition of plaintiff. The plaintiff appealed. On that appeal we held that the plaintiff, and not the intervener, was entitled to a recovery, and we reversed and remanded the case accordingly. While the appeal was pending the intervener collected the judgment from McManus by execution. Upon a remand of the case the plaintiff and McManus filed a motion asking for restitution under the pleadings.- To these the intervener filed its resistance. In its resistance to the application for restitution one ground
The case was brought on for retrial on November 24, 1909. Thereupon the intervener’s attorney stated in open court “that at this time intervener makes no claim for the rendition of any judgment in its favor for the $416 in question, or any part thereof.” Thereupon the petition of intervention was dismissed at intervener’s costs, and judgment was entered for the plaintiff against McManus as originally prayed. No order was made at this time on the application for an order of restitution; such application being still pending. On November 29, 1909, the plaintiff filed amended and substituted application for an order of restitution, and on November 30th the intervener filed its resistance thereto. And on December 2, 1909, such application came on for hearing, all parties appearing and introducing testimony. After a hearing all the proceedings from November 29, 1909, to December 2, 1909, inclusive, appear to have been included in one judgment entry and entered upon the record accordingly.
That part of the judgment entry from which intervener has appealed is as follows: “It is adjudged and ordered by the court that the intervener, Dubuque Star Brewing Company, make restitution of the four hundred and sixteen dollars ($416) received from the clerk of this court in this case, May 16, 1907, by paying said four hundred and sixteen dollars ($416) to the clerk of this court to be applied on the judgment in this case in favor of plaintiff, L. J. Orke, and against the defendant herein, James Mc-Manus, and unless said four hundred and sixteen dollars
The foregoing disposes of the substance of the argument. The points here argued are presented in different forms and with some repetition, but what we have already said is decisive against them all. In its essence the case is controlled as already indicated, by section 4145. The many points raised and argued in resistance to the order of restitution have apparently sprung up out of the bitterness of the litigation, rather than out of any special intricacies involved in the case.
The order of the trial court must be affirmed.