Hagen v. Nielsen

• Decision Date: 05 April 1938
• Docket Number: 44244.
• Citation: 279 N.W. 94,225 Iowa 127
• Parties: HAGEN v. NIELSEN.
• Court: Iowa Supreme Court

279 N.W. 94

225 Iowa 127

HAGEN v. NIELSEN.

No. 44244.

Supreme Court of Iowa.

April 5, 1938

Appeal from District Court, Carroll County; R. L. McCord, Judge.

Original proceeding in equity for the establishment and allowance of a claim of the fourth class filed, but not allowed, and of the filing of which no notice was served within twelve months from the date of service of notice of appointment. The petition and amendments set forth certain facts as peculiar circumstances which, it is alleged, entitled the claimant to equitable relief under section 11972 of the Code. The defendant filed a motion to dismiss, setting up the bar of the statute, and asserting there was no statement of peculiar circumstances entitling the claimant to equitable relief which was sustained by the court on the ground that there was no showing of diligence, and claimant appeals.

Reversed.

Reynolds, Meyers & Tan Creti, of Carroll, for plaintiff-appellant.

Helmer & Minnich, of Carroll, for defendant-appellee.

HAMILTON, Justice.

Frederick Nielsen, as surety, joined in the execution of two promissory notes; one for $500, on which Jens C. Bruns was the principal, and the other for $800, on which F. C Niklason was the principal; both notes payable to August J. Hagen. Thereafter, Frederick Nielsen died and Peter Nielsen was appointed administrator of his estate, and on May 23, 1935, published notice of his appointment as provided by law. E. A. Wissler was attorney for said administrator. August J. Hagen also died, and August F. Hagen was appointed administrator of his estate. August F. Hagen, as administrator, also employed Wissler " to draw up the necessary papers and to file a claim against" the estate of Nielsen, " and to do everything necessary in filing and proving the aforesaid claim."

A claim based on said promissory notes was filed January 31, 1936, but said attorney, E. A. Wissler, failed to give notice of the filing of the claim within the twelve months' period allowed by the statute; that during all the time between January 31, 1936, and May 22, 1936, the said E. A. Wissler " was greatly incapacitated by ill health, which illness was continuous and which resulted in his death on May 22, 1936" ; that during this period of illness the said E. A. Wissler could not carry on his legal practice and was absent from his place of business a great part of the time; that at the time plaintiff employed Wissler to file his claim, Wissler informed plaintiff he was acting as attorney for the estate of Frederick Nielsen, deceased, and told plaintiff " he would have no difficulty in establishing the said claim and assured him that everything necessary would be done" ; that " he would attempt to make collection of the notes from the maker, Jens C. Bruns; that (he) E. A. Wissler knew Bruns and he was certain he would pay the said note" ; " that, at a later date, E. A. Wissler informed plaintiff that he was negotiating with Jens C. Bruns and F. C. Niklason and that a settlement was in the process of being made."

The foregoing constitutes the entire fact situation, as taken from the petition and amendments, which occurred prior to Wissler's death. Wissler died May 22, 1936, just one day prior to the expiration of the twelve months' period for serving notice. The petition further states that August J. Hagen, the claimant, is a resident of South Dakota; " that he did not learn of E. A. Wissler's death until August 1, 1936, and that, thereafter, as soon as he learned of E. A. Wissler's death, he came to Carroll, Iowa, to look after said claim, and employed another attorney to take the proper legal steps to reestablish the same; that this new attorney negotiated with one C. C. Helmer, who was the attorney for the Estate of Frederick Nielsen, deceased, and after some deliberation (sic) the said C. C. Helmer decided that the aforesaid claim could not be allowed" ; that said estate is solvent and is still pending. This suit was commenced on January 18, 1937, and the original notice of suit was served the same day, and the record fails to show that any notice of the filing of said claim, other than the original notice, was ever served on the administrator of Nielsen's estate. The petition further states that claimant did not know that notice of said claim had not been filed " until long after E. A. Wissler's death, and, at which time, the time had expired for giving notice."

Such is the showing made, and upon...