Howell v. Dinneen
Howell v. Dinneen
Opinion of the Court
This is an appeal irom an order dissolving a temporary injunction. - It is alleged in the complaint, in substance, that the plaintiff is the widow of one Henry N. Howell, who died in December, 1899, leaving a will; that by said will he gave and bequeathed all of his personal property and certain lots in Sioux City, Iowa, and a life estate in ten quarter sections of land in Beadle county, in this state, to the plaintiff; that the lands in Beadle county, subject to the life estate of his widow, were bequeathed to his five sisters; that he appointed his said wife executrix, and one Fayant, of Lebanon, Mo., executor, of his last will; that said will was duly admitted to probate by the pounty court of said Beadle county on the 18th day of January, 1900, and the said widow duly qualified as executrix; that on the 17th day of December, 1900, the said county court of said county, by order, removed the said plaintiff as executrix, and the said Fayant as executor, of said estate, and revoked their letters testamentary; that on the 27th day of December, 1900, the county court reappointed the said plaintiff as
The plaintiff served in connection with her complaint an affidavit setting forth substantially the facts set out in her com- - plaint. Upon the complaint and affidavit a temporary injunction was granted, without notice to the defendant. The defendant thereupon moved to dissolve the said temporary injunction upon his answer and the affidavit of one J. B. Coomer, and also upon' all the papers, records, and files of the county court referred to in his answer. The answer referred to and made a part of the same various findings and orders of the county court, including the order of date of September 10, 1901, the concluding portion of which is as follows: “It is ordered that the letters of administration with the will annexed, of said Addie Howell, be, and the same are hereby, revoked, and she is hereby ordered to turn over the property of said estate to her co-administrator with the will annexed, Michael Dinneen, and she is hereby removed from being administra
It will be seen that the plaintiff was removed as executrix of the said estate of the deceased on the 17th day of December 1900. From this order she took an appeal to the circuit court, where the order of the county court was affirmed May 9, 1901. Subsequent to her removal, and before the appeal was disposed of in the circuit court, tow it, on the 28th day of December, 1900, she was appointed administratrix, and the defendant appointed administrator, with the will annexed. It will be observed that subsequently, in September, 1901, she was re
It is further contended on the part of the appellant that the notice of motion to dissolve the injunction was insufficient in that it failed to specify the grounds upon which the motion would be made, and also in that it failed to contain copies of the findings and orders of the county court referred to' in the answer, and also in that it failed to specify that the motion would be made upon the summons, complaint, and all the other proceedings in the action. This contention is clearly untenable. Section 4991, Comp. Laws 1887, provides: “If the injunction be granted by a judge of the court, without notice, the defendant at any time before the trial may apply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits upon the part of the defendant, with or without the same. ” In this case notice was given that
For the reasons herein set forth, we deem it improper for the court to express any opinion upon the questions suggested
We are of the opinion that the circuit court was clearly right in dissolving the injunction, and the order of that court is affirmed. '
Reference
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- 1. Comp. Laws 1887, § 5651, declares that the proceedings of county courts are construed in the same manner as the proceedings of courts of general jurisdiction, and that to its records, orders, judgments, and decrees are accorded like force as to those of circuit .courts. Sections 5758 to 5762 authorize the county court to remove executors and administrators. By orders of a county court, an administratrix was removed, and directed to turn over to her co-administrator all the property of the estate in her possession, No appeal was taken from this order. Held, that a temporary injunction restraining the' co-administrator from taking possession of the property in obedience to the order removing the administratrix was properly dissolved. 2. Under Comp. Laws 1887, § 4991, providing that, if an injunction be granted by a judge without notice, the defendant may apply, upon notice, to vacate or modify the same, and that the application may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits upon the part of the defendant, with or without the same, a motion to dissolve a temporary injunction, stating that, upon defendant’s answer, an affidavit of another party, and also upon all the papers, records, and flies of the county court referred to in the answer, the defendant would move to dissolve the temporary injunction, sufficiently stated the grounds of the motion. 3. Under Comp. Laws 1887, § 4991, an application to dissolve a temporary injunction, made upon affidavits, answer, and certain findings and orders of the county court referred to in the answer, was not defective because not containing a copy of the findings and orders referred to, where all of such findings and orders were made in proceedings in which the parties to the injunction suit were parties, and were of record in the same county, and in the custody of the clerk of the court in which the injunction suit was instituted.