Jacobson v. Union Story Trust and Sav. Bank
| Decision Date | 21 September 1983 |
| Docket Number | No. 68675,68675 |
| Citation | 338 N.W.2d 161 |
| Parties | Dennis Gene JACOBSON and Rebecca Jo Jacobson, Appellants, v. UNION STORY TRUST AND SAVINGS BANK, Executor of the Estate of Paul T. Spies, Deceased, Appellee. |
| Court | Iowa Supreme Court |
Paul H. Rosenberg of Rosenberg & Margulies, Des Moines, for appellants.
John B. Grier of Cartwright, Druker & Ryden, Marshalltown, for appellee.
Considered by REYNOLDSON, C.J., and HARRIS, McCORMICK, SCHULTZ, and CARTER, JJ.
This appeal arises out of a grant of summary judgment to the defendant in tort action and illustrates the risks of commencing a lawsuit on the final day of the limitations period.
Dennis and Rebecca Jacobson, plaintiffs, were allegedly injured on February 16, 1979, when the automobile they were driving collided with a car driven by Paul Spies. On February 17, 1981, the day after a legal holiday and the last day before the expiration of the limitations period, plaintiffs filed a lawsuit against Spies in district court. Two days later the sheriff returned the original notice to the clerk with a notice of nonservice because Spies was deceased. Spies had died on July 7, 1980, but no estate had been opened nor had plaintiffs been informed of his death. On August 6, 1981, plaintiffs petitioned for the administration of the estate. Pursuant to court order the estate was opened and Union Story Trust and Savings Bank (bank) appointed executor. On November 17, 1981, plaintiffs filed a substituted and amended petition naming the bank as defendant.
On February 11, 1982, following the bank's answer and after discovery proceedings, the bank moved for summary judgment on the basis that a claim against it as executor was barred by the statute of limitations. In the attached supporting statement the bank detailed undisputed facts concerning the dates of the accident, initiation of the suit against decedent and the substituted and amended petition. In its accompanying memorandum the bank claimed that the filing of a petition against a deceased person did not toll the statute of limitations and the substitution of the executor did not relate back to the filing of the original petition against the decedent.
Prior to the hearing on the motion, plaintiffs filed a resistance with a supporting affidavit. The resistance alleged that the statute did not bar the claim as the suit had been timely commenced against the decedent, plaintiffs had been negotiating with Spies' insurer and plaintiffs were not informed of Spies' death. The supporting affidavit, however, was confined to proof that February 16 was a legal holiday.
In a motion to supplement the record that was filed after the hearing, plaintiffs offered an additional affidavit. The district court denied this motion; however, it indicated the facts contained in the affidavit would not have changed the result. Consequently, we shall consider these additional facts without deciding whether or not the district court abused its discretion in overruling the motion. The second affidavit signed by plaintiffs' lawyer detailed facts concerning negotiations he conducted with Spies' insurance company and an offer of settlement by the company after Spies' death. It also verified he did not know of the death.
The court granted the defendant summary judgment on the ground that the action against the bank was barred by the statute of limitations. It concluded that the statute of limitations was not tolled by the filing of the petition against the deceased.
Iowa Code section 614.1(2) requires that an action based on injury to the person be commenced within two years. Plaintiffs' suit was commenced on the last day of the two-year period, but it named a decedent as the only defendant. A decedent does not have the capacity to be sued. 67A C.J.S. Parties § 41 at 741 (1978); 59 Am.Jur.2d Parties § 46 at 407 (1971). Nor does the death of the person to be sued toll the statute of limitations unless otherwise provided by statute. Overbeck v. Dillaber, 165 N.W.2d 795, 796 (Iowa 1969), quoting In re Estate of Hoenig, 230 Iowa 718, 726, 298 N.W. 887, 891 (1941); Widner v. Wilcox, 131 Iowa 223, 108 N.W. 238 (1906). Accordingly, we must examine our statutes and rules to determine whether or not any of them provide authority to stop the running of the limitation based on plaintiffs' suit against the decedent.
Iowa Code section 614.2 does provide some relief for claimants when a defendant dies before the end of the limitations period. That section states:
In all cases where by the death of the party to be charged, the bringing of an action against his estate shall have been delayed beyond the period provided for by statute, the time within which action may be brought against his estate is hereby extended for six months from the date of the death of said decedent.
Plaintiffs cannot take advantage of this section because they brought their action more than six months after the date of Spies' death.
Nor does Iowa Rule of Civil Procedure 15 provide any relief to plaintiffs. In providing for substitution of legal representatives and successors in interest of a "deceased party," rule 15 is very similar to rule 25(a)(1) of the Federal Rules of Civil Procedure. Federal courts considering rule 25(a) in connection with the situation we now face have held that federal rule 25(a)(I) contemplates substitution for someone who had been made a party prior to his death. Mizukami v. Buras, 419 F.2d 1319 (5th Cir.1969); Moul v. Pace, 261 F.Supp. 616 (D.Md.1966); Chorney v. Callahan, 135 F.Supp. 35 (D.Mass.1955); Fed.Proc., L.Ed. § 59:426 at 298 (Interim Binder 1983). Plaintiffs concede that Iowa rule 15 is of no help to their cause.
Plaintiffs argue that even though they cannot prosecute their suit against the original defendant they can amend their lawsuit by naming the executor as defendant. They contend that the amendment relates back to the suit filed within the statute of limitations pursuant to Iowa Rule of Civil Procedure 89.
Before we address plaintiffs' argument, we note defendant's contention that the filing of a lawsuit against a deceased person is void ab ...
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