In re the Estate of Behrens

Deemer, J. [30] Section 2379 of the Code of 1873 provides, in substance, that the court may require any one having the effects of one deceased under his control to appear1'and submit to an examination under oath toucning the matter, and, if it appears that he has the wrong ful possession of any such property, may order the delivery of the same to the executor of the estate. The administrator filed llis petition under this section, and Kern was examined before the court with reference to an instrument in writing in his hands, which it was claimed belonged to the estate. After the examination was concluded, and after the term at which the examination was held closed, the court made an order directing Kern to turn over to the administrator the sum of three hundred dollars in money within thirty days from date. At the beginning of the first term of court after the order was made, Kern filed what he denominated a “petition for rehearing,” In which he recited, in substance, that no personal claim was made against him in the original petition, and that he did not learn any such claim was- made until after the order was entered and served upon him; that the order was entered in vacation, and without his consent or agreement, and that he was misled by statements and proanises of counsel for the executor into believing that no personal claim would be made against [31] Mm; that he never had any money belonging to the estate of Behrens, and that the note referred to in the original petition was nothing more than an undelivered memorandum made by him as priest, at the time deceased made a gift to the.church of which he was in charge; that the court, in his examination, which was conducted partly in German and partly in English, misunderstood the effect of the memorandum. On these allegations, Kern asked for a re-trial of the case. The administrator demurred to the petition, on the ground that it constituted no defense to the order. This demurrer was overruled and the appeal is from the ruling. 3 Appellee contends that the ruling is not appeal-able. In the case of In re Pyle, 82 Iowa, 146, we held that an appeal might be taken from an order made under section 2379 of the Code of 1873. If an appeal will lie from such an order, it will, a fortiori, lie from an order granting a re-trial of the proceedings. After making certain admissions in his amended abstract, appellee “denies that his abstract and that of appellant and the two together are true or correct or contain the record.” The admissions relate to the matters of record above recited. Every other statement in appellant’s abstract is eliminated by the denial, and the sole question left for our consideration is whether the court erred in sustaining the demurrer to the petition for a re-trial. A court has power, after the term at which an order is made, to vacate or modify such order for irregularity in obtaining the same, or for fraud practiced by the successful party. The allegations of the petition for re-hearing clearly show that the order made by the court was irregular, in that it was, in effect, a judgment against Kern for the sum of three hundred dollars with interest, whereas the petition or affidavit filed as a basis for [32] the proceedings simply asked that Kern be ordered to turn overa note held by him to the administrator; and this was all the citation required him to meet. He was not aware that any claim for personal judgment was made until served with a copy of the order made by the court. á Again, the petition for re-trial recites that the alleged note was a mere memorandum, which was never delivered, and that the trial court was misled, because of the fact that the proceedings were conducted in two! languages, into believing that the instrument was a note signed by Kern, or that Kem had received a certain sum of money from- the deceased. The petition also- recites that the memorandum, when properly translated, shows on its face that the money obtained was given to- the church of which Kern was a priest, or to the bishop of that church, and- that he never had any interest in the same. The granting of a new trial in such a proceeding as this, rests peculiarly within the sound discretion of the court. From the facts above recited, we think it clearly appears that there was no such abuse of discretion as will justify us in interfering. The -demurrer was properly overruled, and the order is aeeirmed.