Jennings v. Schmitz
| Citation | 20 N.W.2d 897,237 Iowa 580 |
| Decision Date | 11 December 1945 |
| Docket Number | 46769. |
| Parties | JENNINGS v. SCHMITZ et al. (SOCIETY OF THE DIVINE WORD, Intervener). |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
Dan J. Buckley, of Harlan, for appellants.
G O. Hurley, of Harlan, for appellees William H. Schmitz Frances Schmitz, Henry Schmitz, and Marie Schmitz.
J. J. Jennings, of Harlan, for appellees Bernice Hargarten, Robert Hargarten, Richard Hargarten, Joseph Hargarten, Eugene Hargarten, Nicholas H. Hargarten, Jr., and Nicholas H. Hargarten, Jr., Guardian of Bernice Hargarten, Robert Hargarten, Richard Hargarten, Joseph Hargarten, and Eugene Hargarten, minors.
In May, 1920, Wm. Schmitz died, his will was probated and his sons John and Tony were appointed executors. Clause III of the will devised a 160-acre farm to his son Will and daughter Marie Hargarten, subject to a charge of $100 per acre. They accepted the devise, mortgaged the land for $14,000 and early in 1921 paid the net proceeds of the loan, $13,300, to the executors. This suit commenced by the administrator de bonis non upon demand of the Society of the Divine Word of Techny, Illinois (herein called 'the Society'), seeks to establish and foreclose a lien for $2700, the unpaid balance of the total charge of $16,000. Clause II of the will provided for a legacy of $5000 to the Society, a Catholic educational institution, which is wholly unpaid. The will was before us for construction in In re Estate of Schmitz, 231 Iowa 1178, 3 N.W.2d 512.
The amended answer alleged that in February, 1935, the son Will accuired the share in the land of his sister, Marie Hargarten (who has subsequently died), and deeded the entire farm to his wife, Frances, in April, 1942. Frances also alleged in her answer that: A probate order made in February, 1921, approving a report of the executors, which stated that they had collected the $16,000 from Will and Marie, constituted an adjudication against plaintiff herein; the heirs and legatees other than the Society had orally agreed to accept $13,300 in full settlement of Will's and Marie's obligation to pay $16,000; the administrator de bonis non is not a proper party plaintiff; laches and the statute of limitations.
Plaintiff's reply alleged that: The probate order of February, 1921, was ex parte and was procured by fraud of the executors and also of Will and Marie in that the report which the order approved falsely stated that the full $16,000 had been paid the executors when only $13,300 had been paid; the first knowledge that only $13,300 had been paid was in January, 1941, when the executors filed their final report and resignation; Will and his wife Frances, Marie Hargarten and her heirs have all been nonresidents of Iowa since the testator's death. Plaintiff prayed that the 1921 order be set aside.
The trial court held that the 1921 ex parte probate order is an adjudication which deprived it of jurisdiction to grant plaintiff relief and dismissed his petition.
The evidence shows that on February 18, 1921, the executors filed a report which stated they had collected from Will and Marie the $16,000 charged against the 160 acres and had received $5000 from the heirs 'charged with the payment thereof and are holding said sum in trust until there shall be a student from the family or from the parish of Westphalia, desirous of entering said aforesaid school at Techny, Illinois.' The itemized statement of cash receipts, part of the report, listed $16,000 'received from Marie and Wille Schmitz, as per will,' and deducted $5000 from the balance on hand to be held by John and Tony (the executors) as trustees for the Society. The will provided that the legacy to the Society was to pay for a student from the family or from the parish of Westphalia, where testator lived, and made the $5000 a charge against the residuary legacies of testator's five sons and his daughter, Marie. See, 231 Iowa 1178, 3 N.W.2d 512.
No notice of the above report was given anyone. On the same day the report was filed there was also filed an order approving the report, purporting to have been signed three days earlier. The order recited, 'the court being advised from said statements of said report, finds' that the executors have collected $16,000 from Marie and Will and also $5000 for the Society and 'hold the same subject to the further order of this court.' The order approves the report, confirms the title to the 160 acres in Marie and Will free from any claim of the estate, appoints John and Tony trustees of $4750 (net amount of the $5000 legacy to the Society, after the payment of the state inheritance tax) 'for the use and benefit of any student belonging to the family of deceased or to the parish of Westphalia.'
Upon the trial it was shown without dispute that the executors had never collected more than $13,300 of the $16,000 charged against the land devised to Will and Marie and had never collected from the residuary legatees any of the $5000 legacy to the Society. The true facts were first made a matter of record in the executors' 'Final Report and Resignation' filed January 6, 1941, which stated that the report filed February 18, 1921, was in error in these respects. Apparently one of the reasons, perhaps the principal one, why the 1921 report falsely stated that the full $16,000 had been paid was to deceive the company to which Will and Marie had applied for a loan on the land and to facilitate the making of the loan.
The final report also revealed that, while no part of the $5000 for the Society had been collected from the residuary legatees liable therefor, the executors had paid out to them, under the residuary clause of the will, a total of $7243 and an additional $1000 to the daughter Anna, also a residuary legatee but whose legacy was not charged with payment of any portion of the $5000. Of the $7243, Marie was paid $2200, Will $885, John $1500, and Tony $2658.
In February, 1941, the court appointed J. J. Jennings administrator de bonis non and continued until further order the hearing on the executors' petition for discharge. Soon thereafter Jennings commenced the action to construe the will to which we have referred and, as authorized by the court on November 21, 1942, this action was started on December 2, 1942.
1. Appellee Frances Schmitz (Will's wife and present titleholder) contends that until the ex parte order of February 18, 1921, is set aside by an action in the pending probate proceeding the trial court is without jurisdiction in this action to grant the relief prayed for. Appellee apparently does not seriously contend that the order would not be set aside in probate upon such a record as we have here. She says in argument: 'We readily admit that intermediate orders and ex parte orders in probate proceedings are subject to attack in the probate proceedings at all times before final settlement.' She also concedes: 'It was perfectly proper for the administrator de bonis non to bring an action in equity to enforce a lien against the real estate involved.'
Appellee (Frances Schmitz) invokes the rule of priority of jurisdiction: The court which first takes cognizance of an action over which it has jurisdiction and power to afford complete relief has the right to dispose of the controversy without interference from another court of concurrent jurisdiction in which a similar action is later instituted between the same parties. See 21 C.J.S. Courts, § 492, page 745; 14 Am.Jur. 435, section 243; Peff v. Doolittle, Iowa, 15 N.W.2d 913. From this legal principle appellee argues that exclusive jurisdiction to set aside the 1921 order rests in the probate court. The rule which appellee urges is not applicable here and her argument is unsound.
Assuming, without deciding, that probate is the proper forum to set aside the 1921 order, there was no lack of jurisdiction in the trial court to grant such relief in this action in equity. There was no attempt here to deprive the court in which the probate proceeding is pending of jurisdiction. The contention that plaintiff was seeking in equity relief which should have been sought in probate does not go to the jurisdiction of the court nor does it justify the denial of relief in this action. The trial court had jurisdiction to grant any relief in this action which the evidence warranted. Doyle v. Dugan, 229 Iowa 724, 732, 295 N.W. 128, 132, and cases there cited; In re Will of Proestler, 227 Iowa 895, 901, 289 N.W. 436; In re Estate of Nish, 220 Iowa 45, 48, 261 N.W. 521, 100 A.L.R. 1516, and cases cited; Todd v. State Bank, 182 Iowa 276, 294, 295, 165 N.W. 593, 3 A.L.R. 971; Reiger v. Turley, 151 Iowa 491, 497, 131 N.W. 866.
The trial court is the identical court in which the probate proceeding is pending. Time and again we have pointed out that there is but one court of general jurisdiction in Iowa--the district court. Before it all proceedings come, whether law, equity or probate. Forms of action differ but they are not controlling. Separate dockets are kept for convenience and efficiency, to expedite but not to clog the administration of justice. The remedy to which a party to an action is entitled may be awarded in utter disregard of its place on the calendar, unless objection thereto is raised in the manner prescribed by statute--a motion to transfer to the proper docket. If no such motion is made, any error in the kind of proceedings adopted is waived. See sections 10944, 10946, 10949, Code, 1939. Since no such motion was made here, plaintiff was entitled to have the 1921 order set aside in this action as prayed for by him, if he would have been entitled to such relief in probate upon the same showing.
Some of the many decisions which support the foregoing views, in addition to the cases...
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