QUINN et al.
Rehearing Denied Sept. 19, 1952.
[243 Iowa 1186] Louis J. Kehoe, Washington, A. C. Cahill (of Messer, Hamilton, Cahill & Bartley), Iowa City, for petitioners.
Edmund D. Morrison, Jr., Washington, for respondent.
MULRONEY, Chief Justice.
Three days after the death of Robert Louis Quinn in an automobile accident the clerk appointed his son, James L. Quinn administrator of his father's estate. Four days later the widow of Louis J. Quinn filed her petition in the district court asking for the removal of James L. Quinn as administrator and asking the appointment of her nominee, Lee A. Holland. After hearing on the widow's petition the trial court concluded the widow had the exclusive right (under § 633.39 and § 633.40, Code 1950, I.C.A.) during the first twenty days after burial to request and make application for the granting of administration to any suitable person. The court on Junuary 11, 1952 entered an order revoking the clerk's appointment of James L. Quinn and removing him as administrator and appointing Lee A. Holland as administrator. The order went on to direct James L. Quinn to 'make full report of his doings while acting as administrator' and 'deliver up to the said Lee A. Holland as administrator all property, rights and credits of this estate which came into (his) possession or control * * * while acting as administrator of this estate.' The order also taxed the costs of the hearing against James L. Quinn and his sister Jean Quinn Mooney. The latter had nominated her brother in the first instance and joined him in resisting the widow's petition.
The order removing James L. Quinn as administrator was entered in the records on January 12, 1952 and on the same date James L. Quinn perfected his appeal to the Supreme Court. On January 17, 1952 James L. Quinn filed a supersedeas bond fixed by the court in the sum of $20,000. That appeal is pending [243 Iowa 1187] in this court with the record and appellant's brief and argument now on file. The case now before us involves two orders entered by the district court after the appeal and after the supersedeas bond had been filed and the clerk's stay order issued as provided by Rule 337, Rules of Civil Procedure.
On January 19, 1952, upon the application of Lee A. Holland, administrator, the court made an order authorizing him to join the widow in the defense of the order and judgment appealed from and to employ counsel at the expense of the estate.
On February 20, 1952, the court made an order setting aside and vacating an ex-parte
order previously entered authorizing James L. Quinn as administrator to commence an action for wrongful death of Robert Louis Quinn.
The above are the two orders which James L. Quinn seeks to test in the two consolidated certiorari actions now before us. Petitioner argues the order of January 11, 1952 was stayed by the filing of the supersedeas bond and the issuance of the stay order by the clerk. The respondent argues the order of January 11, 1952 insofar as it removed James L. Quinn as administrator and appointed Lee A. Holland was self-executing and to this extent it was not superseded by the bond; that Lee A. Holland was the duly qualified and legally acting administrator of the estate after the ...