I. The defendant’s motion to dismiss is based upon three grounds, namely, that the plaintiff has attempted to bring the defendant into court by the abuse of the process of the court; that the court had no jurisdiction of the person of the defendant; and no jurisdiction of the subject-matter of the action.
We first inquire as to jurisdiction of the subject-matter. The petition shows that the plaintiff, a resident of Iowa, and the defendant and two others, residents of Ohio, are the children and only heirs of Adam Hochstetler, who died intestate in Holmes county, Ohio, January 13, 1882, leaving said children and his widow surviving him; that for a number of years next prior to his death the decedent and the defendant were partners in buying, improving and selling Teal estate, and in farming operations, which business was opened and unsettled at the' time the decedent
“And said heirs and legal representatives having agreed upon a division of all the real and personal property, except a small amount of personal property, and except claims which, with said undivided property, amount to about eight thousand dollars; and said heirs, desiring to save expense of administration, and all being over twenty-one years of age, hereby appoint and designate Josiah Hochstetler as agent for and in our behalf to collect all claims in favor of said estate, and make sale of all property, use, divide or dispose of the same as he may deem most profitable, and to apply all moneys collected or realized from the sale of property to, first, the payment of all debts of said estate; and, second, to divide all- surplus remaining in his hands, after deducting all expenses, and an amount for compensation equal to the amount allowed by law to administrators of estates of deceased persons, equally among the three aforesaid daughters and the said Josiah Hochstetler, in the proportion of one-fourth to each person.”
On the same day the defendant accepted the agency by written indorsement on said agreement. The plaintiff alleges that she was induced to enter into said agreement upon the representations of the defendant that he was sole owner of certain of said lands in Ohio and the land in Iowa, and that he was not Indebted to the deceased, all of which representations
The defendant shows, by affidavit in support of his motion, that on February 20, 1885, he was duly appointed by the probate court of Holmes county, Ohio, administrator of the estate of said decedent; that he qualified as such, and entered upon the discharge of his duties; and that the estate is not yet fully settled, and that no order of distribution among the heirs has been made; that on April 25, 1885, W. R. Shriver was duly appointed as administrator of said estate by the circuit court of Madison county, Iowa, and qualified as such; and that the estate in Iowa is still in process of settlement, and no distribution has been ordered. The plaintiff shows, in resistance of the motion, that she and another heir filed exceptions to the first account of the defendant as administrator to the probate court of Holmes county, Ohio, certain of which were sustained. The journal entry shows that those sustained were to items wherein the defendant accounted as agent under the contract. The court held that it “has no jurisdiction of the matters done as agent by agreement of heirs.”
The plaintiff questions the right of the defendant' to support his motion by affidavit. No such objection was made in the court below, but, on the contrary, the plaintiff not only acquiesced in the right, but filed a counter showing. The district court, no doubt, considered the petition and these showings in passing upon the motion, and under these circumstances they will be considered in this court' without determining the question of practice discussed.
II. It will be seen from the-foregoing that the plaintiff makes no claim against the defendant, except, as relates to rights that came to her as one of the heirs of Adam Hochstetler. As such heir she is entitled to'
This view of the case renders it unnecessary that we notice other questions discussed. The judgment of the district court is aeeiemed.
