First-Trust Joint Stock Land Bank of Chi. v. Terbell

• Decision Date: 13 February 1934
• Docket Number: No. 42165.,42165.
• Citation: 217 Iowa 624,252 N.W. 769
• Parties: FIRST-TRUST JOINT STOCK LAND BANK OF CHICAGO v. TERBELL.
• Court: Iowa Supreme Court

217 Iowa 624

252 N.W. 769

FIRST-TRUST JOINT STOCK LAND BANK OF CHICAGO

v.TERBELL.

No. 42165.

Supreme Court of Iowa.

Feb. 13, 1934.

Appeal from District Court, Mahaska County; H. D. Evans, Judge.

An action upon a claim against an estate. The defense was that the claim was barred under statutory provisions. A jury was waived and the case tried to the court resulting in an order and judgment denying the allowance of the claim. Claimant appeals.

Affirmed.

McNeil & Scovel, of Montezuma, for appellant.

Arlo W. Palmer, of New Sharon, for appellee.

ANDERSON, Justice.

This is an action involving a claim made against the estate of M. A. Miller, deceased, by the First-Trust Joint Stock Land Bank of Chicago. The amount involved is approximately $30,000, and the claim is based upon two promissory notes secured by real estate mortgages upon 360 acres of land in Mahaska county, Iowa, the payment of which was assumed by M. A. Miller during his lifetime. Miller, who was a resident of New Sharon, Mahaska county, Iowa, died on March 19, 1931, and on March 26, 1931, W. A. Terbell, the defendant and appellee herein, was appointed administrator of his estate, and letters were issued to him on that date. Indorsed upon the letters and signed by the clerk was the following order: “The administrator will publish notice of his appointment once each week for three consecutive weeks in the New Sharon Star or by posting on bulletin board in front of court house in Mahaska County, Iowa.” The notice of appointment of administrator, dated the 26th day of March, 1931, and signed by the administrator, was published as in said order provided, the first publication occurring on April 2, and the last on April 16, 1931.

On April 16, 1932, the claimant-appellant herein filed its claim against the M. A. Miller estate in two counts based upon the two promissory notes and real estate mortgages heretofore mentioned, alleging that the M. A. Miller estate was still open and unsettled and was solvent, having property of the approximate value of $60,000, and further alleging: “That no prejudice will result to this estate by reason of the time of presenting this claim, and that this Claimant was not until recently advised of the death of M. A. Miller, or of the administration of his estate, and had no reason to know the said M. A. Miller had died, and that upon learning of the death of the said M. A. Miller and the administration of his estate it promptly made arrangements for the filing of this claim, and that this Claimant is, under the circumstances, entitled to have its claim allowed as a claim of the fourth class.” The prayer of the claimant asks that its claim “be allowed as a claim of the fourth class, and that the same be approved, and that the administrator of this estate be authorized and directed to make payment of said claim.”

The defendant-appellee filed answer to the claim thus made by the appellant alleging that the petition for the allowance of the claim involved was filed in the office of the clerk of the district court on the 16th day of April, 1932, and notice thereof was served upon the administrator upon the same date; that more than one year had expired from the giving of notice of his appointment as administrator before the filing and service of notice of appellant's claim; that the claimant had full knowledge of the death of M. A. Miller, and the administration of his estate for more than three months prior to the filing of its claim; and that the claim was and is barred and outlawed. Neither party in any way challenged the pleadings filed, and there was no amendment to the claim as filed and no reply to the answer of the defendant. A jury was waived and the cause tried and submitted to the court, and the court made a finding and order that the claim and petition for allowance was not filed and notice thereof served within the time provided by statute, and that the claim is therefore barred. The court further found that there was no evidence of any peculiar circumstances which entitled plaintiff to equitable relief and denied the allowance of the claim. From such ruling this appeal is prosecuted.

Errors assigned and relied upon for reversal are: (1) That the court erred in finding that the claim was barred under the provisions of sections 11890 and 11972 of the 1931 Code; and (2) that the court erred in finding that there was no evidence of any peculiar circumstances entitling claimant to equitable relief against the bar of the statute.

[1] We will discuss these questions in the order indicated.

Section 11890 provides that within ten days after the appointment of an administrator a notice of such appointment shall be published as the court or clerk may direct, which direction shall be indorsed on the letters when issued. This section was complied with, and, while the order or direction was in the alternative, providing either for publication for three weeks, or by posting, the administrator apparently elected to publish the notice, and did so as the order provided. The first contention of the appellant is that the publication of the notice is not complete until the date of the last publication, and that the statute does not commence to run until that date. This particular question has not been heretofore decided by this court in this class of cases and under this statute, so far as we have been able to ascertain. However, in several of our cases where the question as to the bar of the statute has been involved, and where the notice was given by publication, we have indicated one date; that is, the date of the first publication. Had the order been for posting alone, there could be no question but what the statute would commence to run from the date on which the notice was posted. We find it unnecessary, however, to determine this question, as the claimant in the instant case is not within the rule for which he contends; that is, that the statute does not commence to run until the date of the last publication of the notice. Section 11972 provides that all claims of the fourth class not filed and allowed, or if filed and notice thereof is not served within twelve months from the giving of notice, will be barred, except as to pending actions or unless peculiar circumstances entitle the claimant to equitable relief. The date of the last publication of the notice in the instant case was April 16, 1931, and the claim here involved was not filed until April 16, 1932, clearly not within twelve months from April 16, 1931. We conclude there is no merit in claimant's contention at this point.

[2][3] We now take up the second question raised by the appellant, that is, as to whether the evidence shows “peculiar circumstances” entitling the claimant to recover notwithstanding the bar...