178 Iowa 932 | Iowa | 1916
“Q. Now do you feel if some good, honest, straightforward man to look after the property and investments for you, and give you the proceeds of it — would that be all right? Some good, honest, — any good man? A. Well, I don’t know yet. I won’t do anything. I say Andy can look after it for me. Q. Mrs. Wolf, do you not feel now that you ought to have some good, honest man to look after your property and help you keep it intact, together, so it would not be wasted and lost? A. Yes, but I wouldn’t be willing*934 to do that yet. I don’t feel able to manage it myself. Mr. Wolf always managed things himself. Q. Suppose Judge Ellison should pick some good man in Cedar Rapids, a nice man, some man you know of, a good business man, who could give bonds for more than the property is worth, — some man like that, so you would be safe and secure, — would you be satisfied to let such a man look after your affairs? A. I would think it over. I can think it over. Q. Suppose a ma.n that Judge Ellison would select would put up a bond for double the amount of the property likely to come into his hands for you, to protect you and secure you against any loss, Mrs. Wolf, wouldn’t you be satisfied to have such a man? A. I don’t know; I can think it over, you know.”
She finally answered that she would be willing that some good man be appointed, and that she would feel satisfied to allow Judge Ellison, the man who sits on the bench, to select a man for her.
Though it be conceded that defendant was not competent to personally look after her affairs, still, if she was mentally competent to appoint an agent, she could do that, and the agent could look after her property and help her keep it intact, so it would not be wasted and lost. But, as stated, we may not determine the merits of the case.
2. It is contended by appellee that the appeal should be dismissed, because the death of the ward has terminated the guardianship and the appeal must be ineffectual, citing Faucher v. Grass, 60 Iowa 505; Bethany Congregational Church v. Morse, 151 Iowa 521; Horrabin v. City of Iowa City, 160 Iowa 650; 4 C. J., page 578, Sec. 2386, and page 584, Sec. 2396.
It appears that defendant made a will after a guardian was appointed, and there was a contest filed. Appellant contends that, because of this, a reversal and a holding that a guardian should not have been appointed would have a bearing upon the burden of proof as to the competency of
In 4 C. J. 589, under the title “Appeal and Error,” we find this doctrine:
“Plea in Abatement or in Bar. In some jurisdictions, objections based on defects in perfecting the appeal, unless apparent on the face of the record, should be taken by plea in abatement, filed in apt time by the clerk of the court; and the same is true as to objections based on matters happening since the perfection of the appeal or subsequent to the judgment sought to be reviewed in a proceeding in error. In these jurisdictions, a motion to dismiss the appeal for the causes set up in such plea will not be entertained. In other jurisdictions, when matters occur subsequently to the judgment, which operate to waive the right of a party to have the*936 judgment reviewed, and they appear of record, objection is properly raised by a motion to dismiss, etc.
And in the same work and volume, page 588, Sec. 2400, we find this:
“Dismissal without Prejudice. There seems to be no general ■ rule as to when the court may and may not dismiss an appeal without prejudice to.the rights of appellant. It has been held that, in the absence of special equitable considerations, appellant is not entitled to a dismissal without prejudice. If such special considerations exist, however, the appeal may be so dismissed.”
See, also, as bearing upon this proposition: Tuttle v. Tuttle (N. D.), 124 N. W. 429; Garlington v. Davison, 122 Ga. 677 (50 S. E. 667) ; Riggins v. Richards, 97 Tex. 526 (80 S. W. 524).
In the Georgia case just cited, it was held that an appeal will be dismissed without prejudice where appellant could not benefit by a reversal.
.It is our conclusion, then, that, because of the death of defendant, the action ought to abate, and this without prejudice, and the motion to dismiss must be sustained, and it is.sustained without prejudice.