Feldner v. Feldner (In re Feldner's Estate)
Decision Date | 21 October 1914 |
Docket Number | No. 29783.,29783. |
Parties | IN RE FELDNER'S ESTATE. FELDNER v. FELDNER. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; John F. Oliver, Judge.
Appeal from an order granting a rehearing or a new trial upon the report of an administratrix, who gave notice of the hearing of her final report by publication only. Reversed and remanded.A. Van Wagenen and Thos. P. Cleary, both of Sioux City, for appellant.
O. D. Nickle, of Sioux City, for appellee.
[1] Anna P. Feldner was appointed administratrix with will annexed of the estate of Phillip Feldner, deceased, and proceeded to administer upon the estate. During the course of administration, she, upon due notice of parties interested, obtained a decree of court construing the will of the deceased, and acted upon that construction in the performance of her trust. On June 24, 1912, she filed a final report and asked an order of the court fixing the notice that should be given, and pursuant to her request the court ordered that the time for hearing be September 3, 1912, and that she give notice to all the heirs, including appellee herein, by publication in a newspaper of the county (naming it) for two consecutive weeks. This notice was given and proof of service duly filed. None of the parties appeared on the time so fixed, and the matter was passed until February 13, 1913, when it came on for hearing before the court, and the report was approved and the administratrix discharged, and her bondsmen were released. On September 15, 1913, Carl H. Feldner, appellee herein, filed a motion for a new trial upon the report, basing his right thereto on the thought that as the notice of the hearing was by publication only, he was entitled to such new trial at any time within two years. He alleged that he had a just and valid defense to the said report as filed, without indicating what the “defense” was. This motion was sustained, and the administratrix appeals.
Appellee seeks to sustain the order upon sections 3796 and 3438 of the Code, which read as follows:
[2] It is manifest, we think, that these sections have reference only to what the Code denominates civil actions, or special actions, and not to orders in probate, upon either final or interlocutory reports. No notice of the filing of either of these reports is necessary to meet any constitutional requirement, as the parties in interest are presumptively present or properly represented, either by the court or the administratrix, and the notice required by section 3422 of the Code is a matter of favor only. Of course, if not given as required, it is error to approve the final report; but this fact does not in any manner affect the rule just announced. Moreover, the Code expressly provides that:
“Service as above shall be as effectual as if personally made, and actions and proceedings may be commenced and prosecuted in all respects as if such notices or orders had been personally served.” Code, § 3404.
And sections 3398, 3399, and 3400 read as follows:
“Sec. 3398. Mistakes in settlements may be corrected in the...
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