Riordan v. White,

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| Iowa | Mar 22, 1876

Rothrook, J.

That the testimony in this case shows a gross fraud on the part of Daniel White, no one who reads it can doubt. It is not necessary to recite it at length. It is sufficient to say that he claims he paid the taxes on this land from 1856 to 1873, amounting to about $160, and that he kept *435watch over it to protect the timber on it and had some surveying done, for which outlay and services he makes the enormous claim of more than $2,000. The land is worth $1,200. The administrator made no effort to ascertain the justice of the claim although he knew that some of the heirs resided in New Orleans. Tie assisted "White in making up his account, and in computing unlawful interest on it. This is the evidence, without conflict or contradiction. The learned Judge who tried the case below,in his special findings justly says: “ A large portion of the claim was without foundation in fact or in law, and its allowance was an act of gross negligence bn the part of the administrator, and operated as a'gross fraud upon the estate.”

Appellants insist that the order of allowance was in the nature of an adjudication, and cannot be impeached for fraud by a mere motion.

■ It may be conceded that the filing of the motion was irregular. But no motion was made to strike it from the files. It was filed as a paper in the matter then before the court, and for aught we can see the court regarded it as an amendment to the petition to remove the administrator. It did not make any new issue. The issue on the petition for removal was as to the fraudulent character of the claim. This issue was distinctly made by the petition and by the answer of Daniel White. All the parties were before the court and the effect of the paper denominated a motion was merely to ask additional relief, and if the court regarded it as an amendment, it need not necessarily be verified. Code, Sec. 2680. If Daniel White objected to its form he should have moved to strike it out. We fail to see how he was prejudiced by it.

Taking all these pleadings together in the light of the evidence, we are of the opinion that the Circuit Court did not err; but that it reached a .correct, and most just conclusion.

Affirmed.