In re Larimer's Estate
| Decision Date | 17 January 1939 |
| Docket Number | 44526. |
| Citation | 283 N.W. 430,225 Iowa 1067 |
| Parties | In re LARIMER'S ESTATE. v. GANOE. JENSEN-SALSBERY LABORATORIES, Inc., |
| Court | Iowa Supreme Court |
Appeal from District Court, Boone County; T. G. Garfield, Judge.
Proceeding in probate to establish claim against estate of decedent. The opinion states the facts. From disallowance of claim upon jury trial claimant appeals.
Affirmed.
Carl E. Patterson, of Des Moines, for appellant.
F. W Ganoe, of Boone, for appellee.
On January 14, 1937, the claimant, Jensen-Salsbery Laboratories Incorporated, filed a claim in probate against F. W. Ganoe Administrator of the Estate of Dr. Ralph E. Larimer, deceased, for $402.91, for 29 shipments of serum, virus, veterinary supplies, etc., claimed to have been purchased on account from claimant by decedent and shipped from Des Moines to Madrid, Iowa, at various times between November 30, 1932, and September 29, 1936. Attached to said claim was an itemized statement consisting of Invoices, Exs. A-1 to A-29, addressed to decedent, listing each alleged shipment with terms (open), data, items, prices, how shipped (parcel post, bus or express), shipping charge, name of salesman, etc.
The claim not being admitted, trial to a jury was had upon the issues raised by said claim and the denial interposed by operation of law under Code Section 11961. At the trial the only material witness was claimant's Des Moines manager, Douglass, who identified Exs. A-1 to A-29 as being original entries in his charge and handwriting, made in the ordinary course of business at the times of the respective transactions. He also testified that Exs. A-1 to A-29 constituted a true and correct copy of the original book of entry. This witness testified further that he was the sole employee of the company at Des Moines, and at the dates therein set out shipped the items listed in Exs. A-1 to A-29 by express and parcel post, addressed to Dr. Larimer, with a return address thereon and also at said times sent decedent a copy of the invoice shipped.
Said exhibits show that 27 of the orders were taken by telephone and 2 by mail. Exs. A-1 to A-29 were offered and admitted in evidence. At this point it may be said that 4 of said exhibits list the salesman as Douglass & Gibson, and the Administrator contends this is contrary to the testimony of the witness, that there was also a variance in his testimony relative to the exhibits being original entries or copies and that in other respects the evidence was not necessarily conclusive.
By agreement the case was submitted to the jury under oral instructions and on December 1, 1937, the jury returned a verdict in favor of the Administrator, entry of which was filed and recorded on December 3, 1937.
On December 3, 1937, claimant filed a motion for judgment notwithstanding verdict, asking therein that the Court enter judgment in its favor against the Estate for the full amount of its claim upon the grounds that the claim was proven by competent evidence, that the Administrator failed to plead any defense or introduce any evidence constituting a defense, that the Administrator had the burden of proving payment and that the verdict was contrary to law and the evidence. On December 10, 1937, claimant filed a motion for new trial stating that the verdict was not sustained by sufficient evidence, that the Administrator had plead no defense as required by Code Section 11961, that the burden of proof rested upon the Administrator under Code Section 11962, and that the Court erred in instructing the jury that the burden of proof rested upon claimant. On December 10, 1937, the Administrator filed resistance to motion for new trial stating that it was filed more than five days after the verdict and, therefore, the Court was without legal authority to grant a new trial upon said motion. On December 10, 1937, claimant also filed application for order nunc pro tunc and extension of time for filing motion for new trial, on the ground that claimant's counsel was unfamiliar with the local rules of practice in said County and believed that he would have ten days within which to file said motion, and that unless the court should grant such extension, it would work great hardship upon claimant.
The Court overruled the motion for new trial and denied the application for order nunc pro tunc and extension of time, holding that the motion for new trial and application for extension were both filed too late to permit their consideration and that the showing was insufficient to justify a nunc pro tunc order.
The abstract of record does not clearly show any ruling upon appellant's motion for judgment notwithstanding verdict. However, such motion, in any event, was of no avail in this case. A motion for judgment notwithstanding verdict is statutory under Code Section 11553, which provides that it may be filed if the pleadings of the successful party omit to aver some material fact or facts necessary to constitute a complete cause of action or defense. In the case of Cownie v. Kopf, 199 Iowa 737, 202 N.W. 517, this Court, in discussing this statute, said [page 518], " Even a cursory view of the aforesaid section * * * shows that a motion non obstante veredicto is based wholly on a defective pleading, in that it omits to aver some material fact or facts necessary to a complete cause of action or defense, and that the motion must clearly point out the omission." See, also, Miller v. Southern Surety Co., 209 Iowa 1221, 229 N.W. 909.
Under the provisions of Code Section 11961 the Administrator was not...
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