In re Ferris' Estate

• Decision Date: 06 June 1944
• Docket Number: 46405.
• Citation: 14 N.W.2d 889,234 Iowa 960
• Parties: In re FERRIS' ESTATE. FERRIS v. FERRIS.
• Court: Iowa Supreme Court

14 N.W.2d 889

234 Iowa 960

In re FERRIS' ESTATE.

FERRIS v. FERRIS.

No. 46405.

Supreme Court of Iowa

June 6, 1944

[Copyrighted Material Omitted]

A. H. Borman, of Guttenberg, and L. D. Dennis, of Cedar Rapids, for appellant.

Alex Holmes, of Strawberry Point, for appellee.

BLISS Justice.

Upon the filing of the application by the administrator-appellant, the court made an order fixing the time of the hearing thereon at the Clayton County Courthouse, and directing service of written notice thereof with copy of application, upon Orin Ferris, twenty days before the hearing. The notice was served as ordered in Grant County, Wisconsin directly across the Mississippi River from Clayton County Iowa. Ferris, whom we will hereinafter refer to as appellee, filed a special appearance, alleging fifteen grounds why the application should be denied and dismissed, and the service upon him quashed. This special appearance was not limited to jurisdictional matters but plead to the merits of the case in a number of its paragraphs, contrary to section 11088, Code of 1939. The appellant filed an answer to the special appearance alleging fifteen grounds why it should be dismissed and all relief thereunder denied, and the prayer of the application granted. The court made an order overruling the special appearance, and granted the appellee ten days to plead further. The appellee took exceptions to the order but never appealed therefrom. Thereafter he challenged the application by filing the aforesaid demurrer and motion to dismiss, which realleged most of the matters set out in the special appearance. For resistance, the appellant, by reference thereto, and incorporation of, his answer to the special appearance, adopted and realleged all of the matters set forth therein.

The application of the administrator was filed on November 9, 1942. A few months prior he had filed his final report in the estate, with a supplement stating the assets were ready for distribution, as soon as the matter of retainer was disposed of. It appears therefrom that Alex Ferris died intestate in Clayton County, Iowa, sometime in 1935, survived by five sons, four daughters, and three children of a deceased son. He died seized of 160 acres of farm land, and two small separate tracts.

The parties agree that the only questions presented on this appeal are the ruling on the demurrer and motion to dismiss, and the consequent dismissal of the application, and judgment against the administrator. The facts, for the purpose of this appeal, must be limited to those properly pleaded in appellant's application as amended, and these must be accepted as true.

Appellant's "Application for Order", as amended, in substance, states: (1) That decedent's estate is now being administered in the district court of Clayton County, Iowa; that the assets thereof consist only of surplus cash proceeds derived from the sale of the estate's real property sold by the administrator under order of court to pay the estates' indebtedness; that said estate is now fully administered upon and the assets thereof are now in the administrator's hands ready for distribution among the heirs; that on February 25, 1927, at Guttenberg, Iowa, appellee and his wife executed and delivered to Alex Ferris their promissory note for $563, payable to his order, three years after its date, at the Clayton County Bank, Guttenberg, Iowa, with interest at 5% per annum until paid; (2) that Alex Ferris is the intestate; (3) that Orin Ferris is one of the heirs of the intestate; (4) that said note is in the hands of the administrator and constitutes a part of the assets of decedent's estate, and there was due thereon on September 2, 1942, the sum of $999.98; (5) that the makers thereof, subsequent to its execution and delivery to Alex Ferris and before the statute of limitations of the state of Iowa had run against said note, moved to the state of Wisconsin and have resided there ever since; that under the laws of Wisconsin the statute of limitations has run against said note, which fact the administrator believes and so charges the fact to be to have been well known to the said Ferris and his attorney, and that should suit be commenced by the administrator against Ferris on his note in Wisconsin, the administrator believes and charges that Ferris could and would plead the statute of limitations of Wisconsin as a defense to said action and thus prevent judgment against him and avoid the payment of his just obligation to the estate, enabling him to receive more than his legal share of said estate, to the prejudice of the other heirs; (6) that although said note is long past due the said Orin Ferris has refused and neglected and still refuses and neglects to pay the same, or to consent or permit the administrator to deduct the amount of said indebtedness from the distributive share due the said Ferris from the estate of his deceased father; (7) that upon the refusal of the said Ferris to pay said indebtedness or to permit the deduction thereof from his distributive share, the administrator, under orders of court first obtained, commenced an action for judgment in said court, aided by attachment proceedings, against said Ferris, upon said note, to which action said Ferris filed a special appearance attacking the jurisdiction of the court to hear or try said cause; (8) that as far as the administrator has knowledge the said Ferris has no meritorious or legal defense to said claim based upon said note, executed and delivered by him to his father and now the property of the latter's estate; (9) that the administrator believes and charges the facts to be that unless the court authorizes and orders him, in making distribution of the estate, to indulge against the said Ferris the right of retainer from the said cash assets of the estate derived from the sale of real estate required to be sold under order of the court to pay estate indebtedness, of the amount owing by Ferris to said estate, said amount will be a total loss to said estate and to the heirs thereof. In the application the administrator prayed that the court fix the time and place of the hearing on the application, and prescribe the notice thereof to be given Ferris, and that upon said hearing the administrator be authorized and directed by the court, in making distribution of said estate, to exercise the right of retainer as against the said Orin Ferris and the indebtedness owing by him to the estate, by retaining from his share of the estate the amount of his said indebtedness. The prayer was also for such other orders as may be just to the end that the rights of the estate, its heirs and its administrator may be protected and preserved.

The grounds of appellee's demurrer to the application and motion to dismiss it, in substance, and so far as pertinent, are as follows: (1) That Orin Ferris is not a resident of Iowa, but is and has been for several years a resident of Wisconsin (2) that a probate court is a court of special and limited jurisdiction and has no jurisdiction to hear the application; that the application is nothing more than a suit on a promissory note; that the court has no jurisdiction of either the subject matter or the person of Ferris; (3) that the court had no jurisdiction to make the order setting the hearing on the application and prescribing the notice thereof served on Ferris in Wisconsin; (4) that said notice gave the court no jurisdiction of the subject matter or person of Ferris; (5) that there is no such proceeding as contemplated by the application known or recognized by the laws of Iowa, and that any procedure under the application would be without any jurisdiction, and null and void; (6) that it is essential that the court have jurisdiction of both the person and the subject matter, and that jurisdiction of the subject matter cannot be waived and may be raised at any stage of the proceedings; (7)that in the probate court essential jurisdictional facts must be alleged; (8) that the application shows on its face that there is another cause pending in this court between the same parties covering the same subject matter; (9) that the application shows on its face that the administrator has adequate remedy at law, and that he can sue on the note in Wisconsin where Ferris has a right to live; (10, 11) that the application shows on its face that an attempt was made to hold out from the proceeds of the sale of real estate the amount of the alleged claim, and there is no allegation that Ferris is insolvent, which fact is essential to give jurisdiction over the subject matter and the person of Ferris; (12) that the court has no jurisdiction or authority to deprive Ferris of a trial on the merits in a law case before a jury on the said claimed note to which the said Ferris claims and has a defense, as is well known to the said administrator; (13) that the said administrator has an adequate and complete remedy at law on said note, which is the only and exclusive remedy which he may employ to prove he has a claim, if any, on said note against Orin Ferris, who is entitled to due process of law, which includes a day in court, in a law court, before a jury; (14) that if the administrator does not want to employ his legal remedies in Iowa, there is no reason he may not employ his legal remedies in the state of Wisconsin in the usual procedure instead of attempting to circumvent Ferris' legal right of a trial by jury and according to due process of law; (15) the application is not a hearing of a final report, and the court has no jurisdiction on such application; (16) that the application shows on its face that the said note is barred by the statute of limitations; that by long delay and laches, the administrator is now estopped to claim any rights; that h...