85 Iowa 560 | Iowa | 1892
In the year 1885 an action was pending in the district court of Adams county, in which A. B. Fisher was plaintiff and J. H. Bitchey, the plaintiff in this action, was defendant. It was commenced in August, 1883, to set aside two conveyances of real estate, and for other relief. In March, 1885, Fisher died, and the administrator of his estate, A. F. Oakey, was substituted as plaintiff, and the case was thereafter prosecuted in his name. On the twenty-seventh day of the month last named the district court rendered a decree in favor of the plaintiff, Oakey, administrator, which was affirmed by this court on the eleventh day of June, 1886. See Oakey v. Ritchey, 69 Iowa, 69. On the twenty-third day of May, 1889, Bitchey filed in the Adams county district court the petition in this proceeding, asking for a new trial. In June, 1889, D. S. Sigler filed a motion supported by affidavit asking to be substituted as a party to the original action, and in the proceeding for a new trial, in place of Oakey, administrator, on the ground that he had become the sole owner of the real estate in controversy. The motion was sustained on the sixth day of June, 1889. On the seventh day of January, 1890, the plaintiff was given thirty days in which to file an amended and substituted petition, and, if not filed
In view of the conclusion we have reached as to the final disposition of the case, it is unnecessary to consider questions presented in the arguments 6f counsel, but the case is so unusual in many respects that we have deemed it proper to show some of the more important facts. Until Bitchey was imprisoned in the penitentiary in December, 1885, so far as the record shows, he was not in any manner prevented from giving his case due attention. His relations with Fisher had been of such a character that, if the administrator was not a proper person to be substituted for Fisher after the' death of the latter, he must have known the fact. He does not deny having knowledge of the heirs of Fisher, but charges that the persons interested were negligent in not inquiring of him in regard to them. Yet he offered no objection to the substitution. His petition does not show diligence to obtain the newly-discovered evidence, and fails to show that, had it been produced on the trial, it would have justified a different result. In other words, he has
Appeals may be taken to this court in civil actions and special proceedings “within six months from the rendition of the judgment or order appealed from, and not afterward.” Code, section 3173. “In computing time, the first day shall be excluded, and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday.” Code, section 45, subd. 23. Under the rule of the statute the six months within which the plaintiff was entitled to appeal from the last order of the district court expired on Wednesday, the third day of December, 1890; therefore the appeal was not taken in time. Parkhill v. Brighton, 61 Iowa, 104; Carleton v. Byington, 16 Iowa, 588; Teucher v. Hiatt, 23 Iowa, 530. For that reason the case is DISMISSED.