77 Iowa 332 | Iowa | 1889
The petition states that on the fifteenth day of July, 1882, Jesse L. Williams, a resident of the state of Indiana, was the owner of an undivided oné-half of the east half of the northeast quarter of section 20, township 89, range 47, in Woodbury county ; that defendant George E. Wescott was then the owner of an undivided one-fourth of said tract, and that an undivided one-fourth thereof was owned by forty-three persons as tenants in common, and as heirs of Israel G. Lash, deceased, all of whom were non-residents of the state of Iowa ; that of said heirs sixteen were minors; that on said date defendant Wescott commenced an action in the circuit court of Woodbury county for the partition of said real estate, making all of said persons, excepting Lucie D. Douthit, parties defendant, and also making one John. P. Allison, as guardian of said minors, a defendant; that said Allison acknowledged service of the original notice, but that as to all the other defendants it was served by publication only; that Allison was not in fact the guardian of said minors, nor was he authorized to represent them ; that said court found that due service of the original notice had been made ; that it appointed a guardian ad litem for twelve of the minors, who filed answer as such guardian; that it found said Wescott was the owner of an undivided one-fourth of said premises, the said Jesse L. Williams the owner of an undivided one-half, and the remaining defendants, or heirs of Lash, the owners of an undivided one-fourth thereof, and appointed referees to make partition of the same.
The petition further alleges that the premises in question were sold by the referees; that the sale was
The petition was filed on the twenty-fifth day of February, 1888. On the first day of the term, to-wit, on the nineteenth day of March, 1888, the defendants appeared and filed a motion to strike from the petition the fifth, sixth, seventh, eighth and a part of the tenth paragraphs, and to strike from the title the names of all the plaintiffs but Henry M. Williams. The portions of the petition which the motion sought to have stricken out were allegations to the effect that Jesse L. Williams was a resident of Indiana when the action for partition
We conclude on the showing of the plaintiffs, conceding to it all which may be reasonably claimed, that it shows no right of recovery excepting in favor of Henry M. Williams for-the interest alleged to have been acquired from Lucie D. Douthit which at most is less
III. Counsel discuss with much earnestness the ruling of the district court on the motion to strike from the petition, and the nature and effect of the counterclaim of Hedges. But, in view of the conclusion we have reached on other questions, no practical benefit would result from a further consideration of questions not determined. The rulings and decree of the district court are Affirmed.