Lee v. Blumer
| Decision Date | 26 October 1920 |
| Docket Number | No. 33449.,33449. |
| Citation | 179 N.W. 625,189 Iowa 1145 |
| Parties | LEE v. BLUMER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Shelby County; Thomas Arthur, Judge.
Appeal from a judgment establishing a claim in probate. The material facts are stated in the opinion. Reversed.Preston & Dillinger, of Avoca, for appellant.
Cullison & Cullison, of Harlan, for appellee.
On May 19, 1916, the claim in controversy, which is based upon an alleged promissory note for $1,500, dated at Shelby, Iowa, September 1, 1905, and at the time of the trial amounting to $4,374.08, was filed in the office of the clerk of the district court of Shelby county, against the estate of Fredolin Blumer, who died in 1915. The administrator filed answer denying the claim, and alleging that the instrument was executed without consideration, and that same had been fully paid. To this answer was annexed several interrogatories, accompanied by affidavit, to be answered by claimant. Exceptions to the interrogatories were filed November 6, 1918, and again on September 17, 1919, upon the grounds that same were immaterial and incompetent; that claimant was incompetent, under section 3604 of the Code, to answer said interrogatories; and that the statute permitting the filing thereof is not applicable to proceedings for the establishment of a claim in probate.
On February 22, 1919, the motion of defendant to require claimant to answer the interrogatories was submitted and sustained; claimant being given until September 1st following to answer same. Having failed to do so, the defendant, on September 2d, filed a motion for judgment. This motion was on September 20th overruled, at which time the court also declined to grant claimant further time to answer the interrogatories. Some months later, the case proceeded to trial to a jury. After identifying the signature upon the note and offering same in evidence, claimant rested. Thereupon the defendant moved for judgment upon the ground that claimant had failed to answer the interrogatories, making the interrogatories and affidavit a part thereof. This motion was overruled. Defendant then moved for a directed verdict upon the grounds stated in the motion for judgment. This motion was also overruled. Defendant then introduced evidence for the purpose of showing that the signature upon the note was not genuine, and sought to introduce testimony which it is claimed tended to sustain the plea of payment, but, upon objection of claimant, this testimony was excluded. Both parties having rested, defendant again moved for a directed verdict, basing the same largely upon the failure of defendant to appear at the trial for cross-examination in obedience to a written notice served upon his counsel, requesting him to do so. The motion was overruled. Before submitting the case to the jury, the court, upon motion of counsel for claimant, withdrew the issues of payment and failure of consideration, and submittedonly the question of the genuineness of the signature upon the note.
The facts disclosed, in some respects, take the case out of the ordinary. As already stated, the note bears date September 1, 1905, and was filed for probate May 19, 1916. By its terms it became due in one year, and thereafter both principal and interest bore interest at the rate of 8 per cent. No interest was ever paid. It is suggested in defendant's offer of proof that the maker, on the date of the note, owned 840 acres of land in Shelby county incumbered for $2,500; that he had money in the bank and notes amounting to more than $1,000; that during much of the time he had considerable sums on deposit or loaned, his deposits at times aggregating $10,000, and at his death, they amounted to several thousand dollars. The note was received from claimant by G. W. Cullison, an attorney at Harlan, by mail, together with a letter dated at Chicago April 13, 1916, in which claimant stated that the consideration for the note was a loan of $1,500; that he wrote the maker annually, demanding payment of the interest; that none of the letters were returned; and that he received no reply thereto. Nothing was thereafter heard from claimant by his attorney, although the latter wrote him, advising that answer and interrogatories had been filed to the claim, and requesting him to forward the information necessary for the preparation of interrogatories, or that he come to Harlan for conference. No reply was received from this or a subsequent letter calling attention to the same matter.
It was contended by counsel for claimant in the court below that section 3604 of the Code, authorizing the filing of interrogatories, and requiring the adverse party to answer same, is not applicable to proceedings in probate for the establishment of claims, and that the interrogatories submitted do not call for answers material to any issue involved, and that if same had been answered most favorably to defendant, such answers would not sustain either of the special defenses pleaded, and these contentions present the principal questions for decision upon this appeal. The material sections of the Code are as follows:
“Sec. 3604. Either party may annex to his petition, answer or reply written interrogatories to any one or more of the adverse parties, concerning any of the material facts in issue in the action, the answer to which, on oath, may be read by either party as a deposition between the party interrogating and ...
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