In re Estate of Feldner
| Decision Date | 21 October 1914 |
| Docket Number | 29783 |
| Citation | 149 N.W. 38,167 Iowa 150 |
| Parties | IN RE ESTATE OF PHILLIP FELDNER, Deceased. CARL HENRY FELDNER, Appellee, v. ANNA P. FELDNER, Administratrix of the Estate of Phillip Feldner, Deceased, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. 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.
Reversed and Remanded.
A. Van Wagenen and Thos. P. Cleary, for appellant.
O. D Nickle, for appellee.
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:
Sec. 3796. When a judgment has been rendered against a defendant or defendants, served by publication only, and who do not appear, such defendants, or any one or more of them, or any person legally representing him or them, may, at any time within two years after the rendition of the judgment, appear in court and move to have the action retried, and, security for the costs being given, they shall be permitted to make defense; and thereupon the action shall be retried as to such defendants as if there had been no judgment; and upon the new trial the court may confirm the former judgment, or may modify or set it aside, and may order the plaintiff to restore any money of such defendant paid to him under it and yet remaining in his possession, and pay to the defendant the value of any property which may have been taken in attachment in the action or under the judgment, and not restored.
Sec. 3438. The provisions of this Code concerning the prosecution of a civil action apply to both ordinary and equitable proceedings unless the contrary appears, and shall be followed in special actions not otherwise regulated, so far as applicable.
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, section 3404.
And sections 3398, 3399, and 3400 read as follows:
Sec 3398. Mistakes in settlements may be corrected in the probate court at any time before his final settlement and discharge, and after that time by equitable...
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