Black v. Miller

• Decision Date: 20 November 1912
• Citation: 138 N.W. 535,158 Iowa 293
• Parties: ARCHIBALD BLACK, Appellee, v. H. C. MILLER, Administrator of the Estate of GEORGE BLACK, Deceased, Appellant
• Court: Iowa Supreme Court

138 N.W. 535

158 Iowa 293

ARCHIBALD BLACK, Appellee, v. H. C. MILLER, Administrator of the Estate of GEORGE BLACK, Deceased, Appellant

Supreme Court of Iowa, Des Moines

November 20, 1912

Appeal from Jefferson District Court.--HON. M. A. ROBERTS, Judge.

THE claim of plaintiff was allowed against the estate of George Black, deceased, in the sum of $ 2,500. The administrator appeals.

Reversed.

Crail & Crail, for appellant.

Leggett & McKemey, for appellee.

OPINION

LADD, J.

The plaintiff filed his claim against the estate of George Black deceased, March 10, 1908, consisting of seventeen items. The first fourteen items, except the twelfth related to purchases for or improvements on land. Item fifteen related to the amount claimed to be due on a note, and the twelfth item was for money borrowed. The sixteenth item was for services in caring for stock and work on the farm, and the seventeenth was for "board, washing, and mending twenty years, 1,040 weeks, at $ 1.50 per week, $ 1,560."

In September, 1908, term of the district court the plaintiff caused to be served on the administrator notice of the filing of the claim, and "that the items of said claim except Nos. twelve and fifteen are for the present withdrawn," and that the claim in respect to the said items would come on for hearing on the 5th day of October, 1908, and "that the remaining items of said claim are withheld until the court passes upon the petition of said Archibald Black and wife to quiet his title" to sixty acres of land described, which lands George Black agreed to convey to said Archibald Black in consideration of the services covered by said remaining items of the claim. No trial was had at the time stated, and on November 12, 1910, plaintiff filed what is designated as an "amendment to claim," alleging therein that he amended "his claim heretofore filed against this estate by changing the seventeenth item of the claim so it will read as follows: First. '(17). Boarding, washing, and mending, twenty years, 1,040 weeks, at $ 3 per week, $ 3,120, total amount of claim, $ 5,170,' and files again the claim as amended. Second. He shows that this claim was not filed heretofore in the present form, because of the pendency of certain litigation in this court in reference to the partition of the real estate of said George Black, in which this claimant presented the claim to sixty acres of land under the verbal agreement of the deceased; that claimant should have the same in consideration of the services hereinbefore stated; that said cause was pending in the courts of this state until the day of , 1910, when the same was determined by the court's finding against the claim of this claimant of said land, on the ground that same was not sustained by sufficient evidence to comply with the rules of the court in such cases." The defendant answered denying each item of the claim and that the estate was in any wise indebted to claimant, and pleaded that the claim was not filed within a year after the appointment of defendant as administrator of the estate of deceased and that the circumstances alleged were not sufficient to authorize the filing of the claim thereafter. The answer also pleaded a former adjudication and interposed a counterclaim for the use and rental of the land. To this answer the claimant filed a demurrer in several grounds: (1) That the claim for the items in controversy was never withdrawn. (2) That, as the claim was filed within six months after the appointment of the administrator, claimant was entitled to prove the same. (3) That the record affirmatively showed equitable reasons sufficient to excuse delay in the time of filing the claim, if delay there was. (4) That the facts pleaded did not constitute a former adjudication. The demurrer was sustained, and we shall first dispose of those grounds assailing the claim as filed.

I. It will be observed that the several items of the claim were only "for the present withdrawn," and that the two excepted items were to come on for trial; and further on the notice recites that "the remaining items of said claim are withheld until the court passes upon the petition of said Archibald Black and wife to quiet his title in sixty acres of land," describing it. Plainly enough the purpose of the notice was to bring the two items on for trial, and in doing so to withdraw the others from the trial, but not from the claim as filed. Whether this might be done is not important, for the proposed trial did not proceed and the claim continued on file as before the service of the notice. We are of the opinion that the items thereof were never actually withdrawn from the claim, and that even if they were, under the circumstances disclosed, i. e., that the estate was unsettled, that the two items were undisposed of, and the amendment filed within five months after the final disposition of the case, involving the same matter, presents a case calling for equitable relief in permitting the filing of the amendment to the claim more than one year after the appointment of the administrator and when it was filed. See Asher v. Pegg, 146 Iowa 541, 123 N.W. 739.

II. In count 3 of the answer the defendant plead the decree in Black et al. v. Chase et al., 145 Iowa 715, 122 N.W. 916, as res adjudicata and by way of estoppel. The petition in that action was by three children of the deceased praying for the partition of two hundred acres of land left by him. Three other children, Samuel, George, and Arch, set up claims to forty acres each, and subsequently Arch (with his wife) amended his answer by alleging an oral agreement with deceased, said to have been made in 1886, whereby they were to make their home with, care for, and board deceased during the remainder of his life, and as compensation therefor to have sixty acres of land, that they had performed the contract, and prayed that title to said land be quieted in Arch, or the administrator be required to execute a deed therefor, in compliance with said agreement. On hearing, the several forties were held to belong to those claiming them, but the amendment of Arch Black to his answer, setting up said agreement and praying for the conveyance of the sixty acres in compliance therewith, was dismissed and decree entered "that the claim of Arch Black to own sixty acres is without merit and not substantiated by the evidence."

In this action Arch Black presented his claim against the estate of the deceased for the care and board alleged in said amendment during precisely the same period, and prayed that it be established for the value thereof. The evidence relied on was the same in both cases, save that in the last trial proof of the reasonable value of such board and care was adduced. The only evidence of deceased's expectation to pay for the board and care introduced on the last trial was that of his agreement to give Arch the sixty acres of land alleged in the amendment to the answer in the first action. So that in each trial the claimant herein relied on the same proof of furnishing care and board and upon the alleged agreement to pay therefor by transferring the sixty acres of land, in the former praying that he have the land as compensation, and in the latter that payment therefor be from the funds of the estate. In other words, the issues in both actions are the same; the relief sought only being different. It is plain enough that, had the issues now being tried been first determined, the decision would have been conclusive in an action for specific performance. Is the converse true?

Of course, to recover in this action, proof that the board and care were furnished with the mutual expectation of the father to pay, and the son to receive, compensation therefor, would be sufficient. Tank v. Rohweder, 98 Iowa 154, 67 N.W. 106; Weitnaur v. Weitnaur, 117 Iowa 578, 91 N.W. 815. But no testimony of this character was introduced, save as this might be inferred from the evidence of a promise that the son should have the land. Under the evidence, then, if there was to be compensation at all, this was to be the land, and the measure of recovery should be the land, or, in event this cannot be conveyed, then clearly enough claimant would be entitled to its value. It may be conceded that the causes of action are different, the one having been prosecuted in equity and the other at law, the relief sought in one being specific performance and in the other compensation by way of damages, but the same essential issues were involved in each: (1) The existence of the contract and (2) the performance of the services. These were determined in the former action, for there was a hearing and no reservation in dismissing the cross-bill.

Where there is a hearing, and no such words as "without prejudice" appear in the decree, and no reason for dismissal is stated therein, and a decision on the merits is in no wise negatived, the issues raised are presumed to have been heard and decided on the merits. Durant v. Essex Co., 7 Wall. 107, (19 L.Ed. 154); Carberry v Railway, 44 W.Va. 260, (28 S.E. 694); 2 Black on Judgments, section 720. See Finch v. Hollinger, 46 Iowa 216; Hahn v. Miller, 68 Iowa 745, 28 N.W. 51. Says Story, in his Equity Pleading (793): "A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dismission was upon the hearing and was not in terms directed to be without prejudice." It was said in Taylor v. Yarbrough, 54 Va. 183, 13 Gratt. 183: "A bill in equity having been dismissed generally without a reservation of any right of the plaintiff to sue thereafter, is conclusive upon all the issues made up in the case." An error may be predicated on the omission to so indicate in the decree dismissing a cause on hearing if this is done for...