Fritz v. Fritz
| Decision Date | 17 December 1894 |
| Citation | 61 N.W. 169,93 Iowa 27 |
| Parties | HENRY FRITZ v. WM. FRITZ, Administrator of the Estate of B. FRITZ, Appellant |
| Court | Iowa Supreme Court |
October 1, 1894
Appeal from Wapello District Court.--HON. W. I. BABB, Judge.
Proceedings to establish a claim against an estate. From an order establishing and allowing the claim, the administrator appeals.
Affirmed.
McElroy & Roberts for appellant.
J. J Smith and A. C. Steck for appellee.
The defendant is the administrator of the estate of B. Fritz deceased. On the second day of November, 1891, the appellee filed in the office of the clerk of the District Court of Wapello county a claim against the estate for a balance alleged to be due on book account, in the sum of two hundred and thirty-six dollars and sixty-seven cents, and upon a note signed by Fritz, in the sum of one hundred and twenty-five dollars, dated January 1, 1882, due one day after date, and bearing interest at the rate of ten per cent from date. The administrator failed to allow the claim, and on June 29, 1893, plaintiff served upon defendant a notice of the proving of the claim, and that the same would come on for hearing at the following August term of the District Court. The administrator admitted the claim as to the book account, and denied any indebtedness upon the note, and further pleaded that the note claim was barred by the statute of limitations. The District Court allowed the claim in full, and the administrator appeals.
The sole question presented by this appeal relates to the bar of the statute of limitations. It will be observed that the claim was filed before the note was barred, but notice of the hearing thereof was not given until more than ten years after the maturity of the note. The single question then is, does the filing of the claim suspend the running of the statute,-- was the filing of the claim the commencement of an action on the note? The general statutes of limitation are as follows: Code, section 2529: "The following actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: * * 5.--Those founded on written contracts * * * * within ten years." Section 2532 is as follows: "The delivery of the original notice to the sheriff of the proper county, with intent that it be served immediately, which intent shall be presumed unless the contrary appears, or the actual service of that notice by another person, is a commencement of the action." The statutes with reference to claims against estates provide: Section 2408: "Claims against the estate shall be clearly stated, sworn to and filed; and ten days' notice of the hearing thereof, accompanied by a copy of the claim, shall be served on one of the executors in the manner required for commencing ordinary proceedings, unless the same have been approved by the administrator, in which case they may be allowed by the clerk without said notice." Section 2410: "All claims filed, not expressly admitted in writing signed by the executor, with the approbation of the court, shall be considered as denied without any pleading on behalf of the estate." Section 2411: "If a claim filed against the estate is not so admitted by the executor the court may hear and allow the same or may submit it to a jury; and on such hearing, unless otherwise provided, all provisions of law applicable to an ordinary proceeding shall apply." Other sections of the Code make it the duty of the administrator, as soon as possessed of sufficient means, to pay, first, the charges of the last sickness and funeral of the deceased; next, the allowance made by the court to the widow, if any; and then other demands in the following order: (1) Debts entitled to preference under the laws of the United States; (2) public rates and taxes; (3) claims filed within six months after first publication of notice; (4) all other debts; and (5) legacies.
On behalf of the appellant it is insisted that the filing of the claim is not the commencement of the action; that the proceeding is not commenced, within the meaning of the law until notice of the hearing of the claim has actually been served upon the administrator, or until it has been placed in the hands of the sheriff with intent that it be served immediately, as contemplated in section 2532, before quoted. While it is true, generally speaking, that an action is not commenced in this state until actual service of original notice, and that, for the purpose of avoiding the running of the statute of limitations, it is not commenced until the original...
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