Bates v. Remley
| Decision Date | 11 May 1937 |
| Docket Number | 43892. |
| Parties | BATES, Superintendent of Banking, v. REMLEY, Administrator. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jones County; John T. Moffit, Judge.
Plaintiff brought an action at law for authority to file a claim against the estate of A. J. Clarke, deceased, after the time for filing claims had expired and for the allowance of the claim. The trial court found there were no peculiar circumstances shown to entitle plaintiff to relief and disallowed the claim. Plaintiff appeals.
Affirmed.
Rhinehart & McLaughlin, of Anamosa, for appellant.
James E. Remley, of Anamosa, for appellee.
Prior to the death of A. J. Clarke, the defendant James E. Remley had been the guardian of his property for several years and as such guardian borrowed money from the Niles & Watters Savings Bank of Anamosa, Iowa, for the benefit of his ward's estate. The bank closed in January 1932, and L. A Andrews, Superintendent of Banking, was appointed receiver, and B. E. Rhinehart of Anamosa was appointed attorney for the receivership.
At the time the bank closed, the guardianship estate owed the bank about $750, which indebtedness was represented by two notes. Mr. Clarke, a resident of Anamosa, passed away in November, 1932, and Mr. Remley, on application of the heirs, was appointed administrator of his estate on November 19, 1932. He published notice of his appointment for four consecutive weeks in a weekly newspaper of Anamosa, the first publication being on December 1, 1932.
On July 3, 1934, Mr. Remley filed his guardian's final report and, pursuant to an order of court, gave notice of the hearing on said report by posting the notice in three public places. The report was approved and the guardian authorized to turn the assets of the guardianship estate over to the administrator of the estate, which was done. The assets consisted of a note in the sum of $1,650 secured by a first real estate mortgage and a small amount of cash. Early in 1933, the owner of the mortgaged real estate delivered a deed in blank to Mr. Remley. At the time Mr. Remley published his notice of appointment as administrator in December 1932, W. J. Roberts was examiner in charge of the bank and resided in Anamosa. In January, 1933, Mr. Roberts was transferred and was succeeded by Mr. O. U. Conwell.
Code, § 11972, provides that: " All claims of the fourth of the above classes not filed and allowed * * * within twelve months from the giving of the notice aforesaid, will be barred, * * * unless peculiar circumstances entitle the claimant to equitable relief."
Plaintiff commenced this action in April, 1936, and bases his right to equitable relief on the following allegations: He alleges that he did not directly have charge of the bank, the receivership being handled exclusively by examiners in charge and assistant examiners; that the notes owed by the guardianship were listed among the assets of the receivership; that neither the plaintiff nor his predecessor or their representatives knew that A. J. Clarke was deceased until March, 1935, and supposed that James E. Remley was still acting as guardian; that they had no notice that a guardian's final report had been filed or notice given of the time of hearing on said report and did not know of the publication of the notice of filing claims against the estate of Mr. Clarke; that O. U. Conwell has been the examiner in charge of said bank for more than two years, and during that time he had conferred with James E. Remley with reference to the payment of said notes and at no time was his attention called to the fact that A. J. Clarke was deceased and assumed from said conversation that Mr. Remley was still acting as guardian and would take care of the indebtedness as soon as he could realize on said mortgage.
Plaintiff filed an amendment to his petition stating that James Jensen, an assistant examiner in charge, had the active management and control of the receivership from January 15, 1934, to April, 1935; that during said time, he had conversations with Mr. Remley as guardian of Mr. Clarke with reference to the paying of said notes and was given to understand that Mr. Remley was trying to sell the real estate, and when sold, said indebtedness would be paid.
The plaintiff prayed that he be authorized as receiver of the bank to file a claim against said estate and, when filed, the administrator be ordered to allow the claim against the estate.
Defendant filed an answer stating:
Mr. Jensen, assistant examiner in charge from January 15, 1933, to April 1, 1934, during which time he resided in Anamosa, testified for the plaintiff that there were two notes secured by a mortgage given by Remley as guardian in the files of the bank; that he had several conversations with Mr. Remley about the notes, the main subject of the conversations being hard times, and the difficulty of selling land; that in a conversation had in the latter part of 1933, Mr. Remley informed him that the land securing the notes was not worth the amount of the notes and there would have to be a concession. The witness further stated: " I approached him (Remley) as the one that made the loan and signed as guardian, and I considered him the proper party to take it up with because he, as I understood it, was guardian of Mr. Clarke."
Mr. Conwell, examiner in charge, who succeeded Mr. Roberts in January, 1933, lived in Cedar Rapids, Iowa, and went to Anamosa from one to three times a week on the business of the receivership. Mr. Conwell testified that he recalled talking with Mr. Remley in November, 1935, on the street; that he asked Mr. Remley what the prospect was of getting the Clarke guardianship notes cleaned up, and he said that they would have to sell the property. That he suggested to Remley that the property be sold at auction and that Mr. Remley replied that it would be more just to all parties that it be worked out by private sale.
Mr Conwell further testified that he first learned in February, 1936 (over three years after Mr....
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