Lamm v. Sooy

• Decision Date: 11 February 1890
• Citation: 44 N.W. 893,79 Iowa 593
• Parties: LAMM v. SOOY, (TWO CASES.)
• Court: Iowa Supreme Court

79 Iowa 593

44 N.W. 893

LAMM

v.SOOY, (TWO CASES.)

Supreme Court of Iowa.

Feb. 11, 1890.

Appeal from district court, Shelby county; GEORGE CARSON, Judge.

Actions to establish certain claims against the estate of Michael Langton, deceased, of which the defendant, Sooy, was the duly appointed and qualified administrator. There being two cases, resting partly upon the same facts, and involving the same questions, they are submitted together. On June 27, 1887, plaintiff filed his petition to establish his claim on a note alleged to have been executed to him by C. A. Topping and the deceased for $150, with 10 per cent. interest from date; that he had filed said claim July 17, 1885; that said administrator neglected to allow the same. Wherefore he asks that it be established and allowed. On March 13, 1888, he filed an amendment, stating that deceased was surety on said note; that he had filed the same for allowance within 12 months from the qualification of defendant as administrator; that he had filed his petition at the first term of court after the note became due, seeking to collect the same from Topping; that Topping filed an answer for delay only, and that plaintiff was prevented from obtaining judgment until May 19, 1885; that, with due diligence, he caused an execution to issue against said Topping, which was returned, December 5, 1887, wholly unsatisfied, whereupon plaintiff filed his petition to have his claim allowed, and as soon as he knew of said claim having been disallowed; “that the estate has not suffered any damage because of the claim not having been sooner established; that the estate is not closed; and the plaintiff claims that he is now, under the equity branch of the court, enabled to prove his claim against said estate.” On March 13, 1888, appellee filed his motion to transfer the case to the equity calendar, and that the same be tried as an equitable cause, which motion was sustained, to which appellant excepted. On the 15th day of June, 1888, cause came on for hearing, and appellant, in open court, demanded the impaneling of a jury to try the issues in the case, which request was overruled by the court, to which appellant excepted. Thereupon the court proceeded to hear the cause, and, being fully advised, ordered and decreed that the claim be allowed, with interest, to which the appellant also excepted. On the same (27th) day of June, 1887, the plaintiff also filed his petition for an allowance of $839.06, balance alleged to be due “on judgment in the district court, Shelby county, Iowa, on notes and mortgages guarantied by decedent, copies of which are hereto attached,” which claim was indorsed: “Filed July 6, 1885. W. J. DAVIS, Clerk. Rejected. H. B. SWIFT, Administrator.” Each of the six notes set out were indorsed: “For value received, I hereby guaranty payment of the within, with interest at eight per cent. per annum, waiving demand and notice of protest. M. LANGTON.” On March 13, 1888, appellee filed an amendment, stating that the notes were given to him by John A. Wright, and secured by mortgage on the lands described; that deceased indorsed and guarantied said notes to plaintiff for valuable consideration; that the last of said notes becomes due August 15, 1890, each one of said notes falling due one year apart from their date. Appellee avers that he caused the debt to become due, under the terms of the mortgage, on the 15th day of January, 1885, and procured his decree of foreclosure January 14, 1885, and caused special execution to be issued for the sale of the property, which was sold May 16, 1886, for $1,000; and that the balance of the judgment could not be made of Wright, as he was insolvent. Appellee states that he could not have filed, or had his claim established, for the reason that he did not know until August, 1887, that his claim had been disallowed by the administrator, and at once filed his petition to have his claim allowed;” that the estate is still open, and no injury can come to it by reason of this claim not having been established within 12 months of the appointment of the administrator; and asks that the same be now established. On March 13, 1888, the plaintiff filed a motion to transfer to equity, the same as in the other case, which was sustained, and appellant excepted. On June 15, 1888, the cause came on for hearing, and like proceedings were had to those in the other case, and an order and decree that the claim be allowed. From these orders and decrees the defendant appeals.Smith & Cullison, for appellant.

Platt Wicks and Beard & Myerly, for appellee.

GIVEN, J.

1. These claims, not having been filed within six months after the first publication of notice of the administrator's appointment, became claims of the fourth class. Code, § 2420. Claims of that class, “not filed and proved within twelve months of the giving of the notice aforesaid, are forever barred, unless the claim is pending in the district or supreme court, unless peculiar circumstances entitle the claimant to equitable relief.” Code, § 2421. We understand appellee's position to be that claims presented for allowance...