Hawkeye Insurance Company v. Lisker

• Decision Date: 22 January 1904
• Citation: 98 N.W. 127,122 Iowa 341
• Parties: HAWKEYE INSURANCE COMPANY, Appellant, v. FREDERICK W. LISKER, Executor of the Estate of Frederick Lisker, Deceased
• Court: Iowa Supreme Court

98 N.W. 127

122 Iowa 341

HAWKEYE INSURANCE COMPANY, Appellant, v. FREDERICK W. LISKER, Executor of the Estate of Frederick Lisker, Deceased

Supreme Court of Iowa, Des Moines

January 22, 1904

Appeal from Poweshiek District Court.--HON. JOHN T. SCOTT, Judge.

THE plaintiff obtained a judgment against Frederick Lisker in Polk county in October, 1873. Lisker was then, and up to the time of his death in December, 1900, a resident of Poweshiek county. The defendant herein, Frederick W. Lisker, was appointed executor of his estate during the latter part of December, 1900, and the plaintiff's claim was filed against the estate in February, 1902, only a short time after it was barred by the statute, alleging equitable grounds for its allowance. It was not allowed, and the plaintiff appeals.

Affirmed.

E. E Blanchard for appellant.

W. R Lewis and Norris & Norris for appellee.

OPINION

SHERWIN, J.

The plaintiff's judgment had slept for over twenty-seven years before the judgment defendant died, without even an inquiry as to whether it could be collected. Aside from this, however, we think no facts are shown entitling the plaintiff to equitable relief. The statutory notice of the appointment of the executor was duly published in the proper jurisdiction, and the plaintiff was a resident of the state, and bound to take notice of such appointment. It will not do to say that because it had no actual notice thereof it may claim equitable relief, because to so hold would destroy the limitation entirely, except in cases of actual notice, while the statute expressly provides for service by publication.

In addition to the claim of no actual notice, the plaintiff relies upon the fact that its traveling collector was directed to look after this, with other claims in that county, after the death of Lisker, and that he reported on other claims, but made none on this. Conceding this to be true, it does not show such diligence or attention to the claim on the part of the plaintiff as to entitle it to special consideration. It was not shown, as it was in Manatt v. Reynolds, 114 Iowa 688, 87 N.W. 683, that the plaintiff had taken any steps toward having its claim against the estate filed within the statutory period. In that case the plaintiff took affirmative action to protect his rights, and was assured that they were protected, while in this the plaintiff did nothing more than to send its claim with others, to its...