Estate of Fitzgerald v. First National Bank of Chariton, Iowa

• Citation: 89 N.W. 813,64 Neb. 260
• Decision Date: 19 March 1902
• Docket Number: 10,783
• Parties: ESTATE OF JOHN FITZGERALD, DECEASED, v. FIRST NATIONAL BANK OF CHARITON, IOWA
• Court: Supreme Court of Nebraska

89 N.W. 813

64 Neb. 260

ESTATE OF JOHN FITZGERALD, DECEASED, v. FIRST NATIONAL BANK OF CHARITON, IOWA

No. 10,783

Supreme Court of Nebraska

March 19, 1902

ERROR from the district court for Lancaster county. Tried below before HALL, J. Reversed. SEDGWICK, J. dissenting.

REVERSED AND REMANDED.

James Manahan, for plaintiff in error.

Charles L. Burr and Lionel C. Burr, contra.

OLDHAM C. POUND, C. SEDGWICK, J. dissenting.

OPINION

OLDHAM, C.

This action originated on a claim in the nature of a promissory note, due on demand, for $ 5,000 and interest, filed in the probate court of Lancaster county, Nebraska, by the plaintiff below against the estate of John Fitzgerald, deceased. The facts appearing from the record necessary for a determination of this cause are: That John Fitzgerald intestate, died December 30, 1894. On March 14, 1895, Mary Fitzgerald was duly appointed and qualified as administratrix of his estate. On the same day the county court made and entered an order limiting the time in which creditors might present claims against the said estate to six months, and naming June 29, 1895, and September 30, 1895, for examining such claims as might be presented. On September 30, 1895, the county court made and entered an order forever barring all claims not then presented against said estate, and this order was not appealed from and has never been vacated, changed or modified. On May 22, 1896, the plaintiff in the court below presented to the county court and filed the claim in dispute against the estate of John Fitzgerald, deceased. On the same day the administratrix indorsed in writing on said claim her motion to have the same stricken from the files on the ground that it was not presented within the time limited by order of the court for presenting claims against said estate. This motion was overruled and on June 19, 1896, the county court ordered the administratrix to file an answer to said claim. On August 24, 1896, the administratrix, in obedience to the order of the court, filed the following answer:

"CLAIM OF THE FIRST NATIONAL BANK OF CHARITON, IOWA, v. THE ESTATE OF JOHN FITZGERALD, DECEASED, MARY FITZGERALD, ADMINISTRATRIX OF SAID ESTATE.

"Comes now Mary Fitzgerald, as administratrix of the estate of John Fitzgerald, deceased, and for answer to the claim filed herein by the First National Bank of Chariton, Iowa, says: that save and except as hereinafter expressly admitted, she denies each and every allegation made by the said claimant in its complaint and each and every part thereof; she admits that John Fitzgerald, died on the 30th day of December, 1894, and that she is now the duly qualified and acting administratrix of his estate; and she admits further that in May, 1896, Charles Burr, Esq. one of the claimants attorneys presented to her a paper saying it was a note of John Fitzgerald held by the First National Bank of Chariton, Iowa, and that she then and there refused to recognize it as such. Further answering said claim said administratrix states that the estate of John Fitzgerald is not in any manner indebted to the said claimant and asks that the said claim be disallowed. MARY FITZGERALD,

"Administratrix of the Estate of John Fitzgerald.

"By JAMES MANAHAN, her Attorney."

On a hearing subsequently had on said claim, on March 11, 1897, the claim was allowed and the cause was appealed by the administratrix to the district court of Lancaster county, Nebraska. No order was made by the district court directing an issue to be made between the parties in that court, and the hearing was had on the transcript and pleadings which had been certified from the probate court to the district court. Counsel for plaintiff in error objected to the introduction of the claim in suit for the reason that it had not been presented against the defendant in the county court within the time limited by that court for the presentation of claims against that estate; and for the reason that it had not been presented until long after a judgment of the county court had been rendered forever barring all claims not then presented against said estate; and for the further reason that this claim was not filed in the county court for more than six months after the county court had entered its order forever barring all claims not then filed. These objections were overruled by the district court. The claim was admitted in evidence. Plaintiff had judgment in the court below and defendant brings error to this court.

There are numerous errors alleged against the proceedings in the trial of this cause in the district court in the brief of the plaintiff in error, but in view of the conclusion which we shall reach with reference to the action of the trial court in overruling the objections to the introduction of the claim, it will not be necessary to consider any of the other alleged errors. The trial court overruled the objections of the administratrix to the introduction of the claim on the ground that it was an issue which was not tendered by her answer in the county court. It is the general rule of practice that, when a cause is appealed from the judgment of the county court or a justice of the peace, the cause must be tried on the issues tendered in the court below, unless the issue tendered above is one which challenges the jurisdiction of the subject-matter of the controversy. The questions then arise: Is a plea of the statute of non-claims one that can be waived by the administrator of an estate? and is it an issue that goes to the jurisdiction of the county court over the subject-matter of the claim? These questions have never been specifically determined by a judgment of this court. The case of Stichter v. Cox, 52 Neb. 532, 72 N.W. 848, determined some questions bearing strongly on the point at issue. In that case a claim was presented to the county court after its bar by the statute of non-claims. No pleadings were filed in the county court, but the administrator objected to the claim because of the bar of the statute. The cause was appealed to the district court, and that court directed an issue to be made between the parties. The administrator answered, and tendered the issue of the statute of non-claims. No motion was made to strike this defense from the answer. On error proceedings in this court the claimant sought to raise the question that the statute of non-claims had not been pleaded in the county court. In discussing this question NORVAL, C. J. said: "More than one answer can be properly made to this contention. There is no provision of statute requiring the administrator to plead in the county court to a claim presented therein against his intestate, except section 221, chapter 23, Compiled Statutes, makes it his duty to exhibit any claim of the decedent in offset to that of the creditor. In this case, however, the administrator did file in the county court formal objections to the allowance of this claim, and in the district court, in his answer, he specially pleaded the statute of limitations. The claimant did not move to strike this defense from the answer, nor did he in any other manner present the question to the trial court that the issues raised by the answer were different from those in the county court, obtain a ruling thereon, and preserve an exception thereto in the record. This was indispensable to make available here the objection that there was a variance in the issues. Robertson v. Buffalo County Nat. Bank, 40 Neb. 235, 58 N.W. 715." While the decision in this case turned on the question of the failure of the claimant to object to the answer filed by the administrator in the district court, yet it says that "more than one answer can be properly made to this contention," and it also says that the administrator was not required to file any answer in the probate court, and by inference it says that his objection to the claim in the county court was sufficient to raise the issue of the statute of non-claims.

Turning now to the sections of the statute providing for the payment of debts and legacies of deceased persons, and particularly to those sections that provide for the presentation and allowance of matured and absolute claims, to which class the claim in suit belongs, we find that sections 217-219, chapter 23, Complied Statutes of 1901, provide as follows:

"Sec. 217. The probate court shall allow such time as the circumstances of the case shall require for the creditors to present their claims to the commissioners for examination and allowance, which time shall not, in the first instance, exceed eighteen months, nor be less than six months, and the time allowed shall be stated in the commission.

"Sec. 218. The probate court may extend the time allowed to creditors to present their claims, as the circumstances of the case may require; but not so that the whole time shall exceed two years from the time of appointing such commissioners.

"Sec. 219. On the application of a creditor who has failed to present his claim, if made within six months from the time previously limited, the court may, for good cause shown, renew the commission, and allow further time, not exceeding three months, for the commissioners to examine such claims, in which case the commissioners shall personally notify the parties of the time and place of hearing, and, as soon as may be, make return of their doings to the probate court."

These sections are followed by sections 221 and 226, which provide as follows:

"Sec 221. When a creditor against whom the deceased has had claims shall present a claim to the commissioners, the executor or administrator shall exhibit the claim of the deceased in off-set to the claims of the creditor, and the commissioners shall ascertain and allow the balance against or in favor of the...