Ontjes v. McNider

• Decision Date: 28 September 1937
• Docket Number: 43778.
• Citation: 275 N.W. 328,224 Iowa 115
• Parties: ONTJES et al. (HOLTA et al., Interveners) v. McNIDER et al.
• Court: Iowa Supreme Court

275 N.W. 328

224 Iowa 115

ONTJES et al. (HOLTA et al., Interveners) v. McNIDER et al.

No. 43778.

Supreme Court of Iowa.

September 28, 1937

Appeal from District Court, Cerro Gordo County; T. A. Beardmore Judge.

This case involves a claim against the estate of a decedent. Among other defenses, the executors pleaded that the claim was barred because it was not filed within twelve months from the time that the executors gave notice of their appointment. The claimants, while not admitting this defense of the executors alleged what they claimed were peculiar circumstances entitling them to relief from the bar of the statute. A hearing was had on the issue as to whether peculiar circumstances existed entitling the claimants to relief from the bar of the statute, as pleaded by them. The trial court entered an order finding that the plaintiffs had sustained the burden of proof as to this issue, and that they were entitled to proceed to a trial of the claim upon its merits. From this order the executors appealed.

Appeal dismissed.

Davis McLaughlin & Hise, of Des Moines, and Smith & Feeney, of Mason City, for appellants.

F. A. Ontjes, of Mason City, D. M. Kelleher, of Fort Dodge, W. G. Henke, of Charles City, and Ben S. Hunter, of Los Angeles, Cal., for appellees.

DONEGAN, Justice.

This case involves a claim against the estate of C. H. McNider, deceased, and is brought in the names of F. A. Ontjes and others, as stockholders in the Northwestern States Portland Cement Company, a corporation, in behalf of the corporation and in behalf of themselves and other stockholders similarly situated, against Hanford McNider and May H. McNider, executors of the estate of C. H. McNider, deceased.

C. H. McNider died testate on October 30, 1928, and Hanford McNider, his son, and May H. McNider, his widow, were thereafter appointed executors of his will and duly qualified. The original claim in this action was filed August 6, 1931. Many and voluminous pleadings have been filed in this action by both plaintiffs and defendants, but, for the purposes of this appeal, it is not necessary to consider these pleadings in detail.

Among other defenses, the defendants pleaded that the plaintiffs' claim was barred, because it was not filed within twelve months from the giving of notice of their appointment by the executors, as provided by section 11972 of the 1927 Code, which is as follows: " 11972. * * * All claims of the fourth of the above classes, not filed and allowed, or if filed and notice thereof, as hereinbefore provided, is not served within twelve months from the giving of the notice aforesaid, will be barred, except as to actions against decedent pending in the district or supreme court at the time of his death, or unless peculiar circumstances entitle the claimant to equitable relief."

The pleadings of the plaintiffs, however, alleged matters which they contend constituted peculiar circumstances entitling them to relief from the bar of the statute. On March 9, 1936, on application of the defendants, an order was entered by the trial court directing that the issue as to the existence of peculiar circumstances claimed entitling them to equitable relief be considered and determined before proceeding to the trial of the claim itself upon its merits. Trial was thereupon had by the court for the purpose of determining this issue, and, at the conclusion of such trial, the trial court, on the 11th day of June, 1936, entered a ruling in which it found that the claim involved was a claim of the fourth class; that it was not filed within twelve months from the giving of notice of their appointment by the executors of the estate; that claimants had proved, by the preponderance of the evidence, peculiar circumstances entitling them to equitable relief; that said claim is not barred by the failure to file it within twelve months from the giving of notice of their appointment by the executors; and it was ordered that said claim was entitled to come on for hearing in due course and be heard on its merits. From such ruling and order of the trial court the executors of the estate of C. H. McNider, deceased, have appealed to this court. For convenience the claimants will hereafter be referred to in this opinion as plaintiffs or appellees and the executors will be referred to as defendants or appellants.

Prior to its submission the appellees filed a motion to dismiss the appeal, on the ground that the order from which the appeal was attempted is not an appealable order. This motion was ordered submitted with the case and, as it goes to our jurisdiction to consider or decide the questions presented in the appeal, it must receive our attention before proceeding further.

Under our Code system the right of appeal to the Supreme Court is purely statutory. Unless authorized by statute, no appeal can be taken to this court from judgments or orders of inferior courts, and the statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered. The ruling and order here appealed from were rendered on June 11, 1936. The statutes controlling this appeal are, therefore, found in the Code of 1935. The only statutes on which appellants claim a right to base their appeal in this case are section 12822, and subdivision 4 of section 12823, of the Code of 1935, which are as follows:

" 12822. * * * The supreme court has appellate jurisdiction over all judgments and decisions of all courts of record, except as otherwise provided by law."

" 12823. * * * An appeal may also be taken to the supreme court from: * * *

4. An intermediate order involving the merits or materially affecting the final decision."

I.

Appellants first contend that the order appealed from is a final order and judgment of the court, and that, as such, an appeal therefrom is authorized by section 12822. Appellants' first argument in support of this contention is based upon the nature of the proceeding in which the order was entered. While the establishment of a claim in a probate proceeding is a law action, the issue as to the existence of peculiar circumstances entitling a claimant to equitable relief is tried by the court as an equitable proceeding, and is determined by the application of equitable principles. Lamm v. Sooy, 79 Iowa 593, 44 N.W. 893; Peterson v. Johnson, 205 Iowa 16, 212 N.W. 138. Section 4, article 5, of the Constitution of Iowa, provides: " The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a Court for the correction of errors at law." Appeals to this court in equitable cases are, therefore, tried de novo, while, in appeals in law actions, this court can only act as a court for the correction of such errors as are specifically pointed out. Appellants contend that, in the instant case, the order involved was in an equitable proceeding; that an appeal from that order must be tried in this court de novo, whereas an appeal from a judgment reached on the trial of the claim on its merits would be in a law action and could only be reviewed in this court on errors specifically pointed out; that the order entered by the court on the equitable issue was final as to such issue; and that an appeal from that order could not be considered on an appeal from the final judgment entered on the trial of the claim upon its merits.

Prior to the adoption of our Constitution and the enactment of statutes authorizing appeals to this court, there were many differences between obtaining a review in an appellate court in an action in equity, and a correction of errors in an action at law. Under the old English system, courts of law and courts of equity were entirely distinct, and a review in an equity case was by a different tribunal than that in which a review could be had in an action at law. Now the same tribunal, the Supreme Court, entertains appeals from and reviews both actions in equity and those at law. The procedure followed in removing actions from the trial court to an appellate court was likewise different, actions at law being removed by a writ of error, and actions in equity by appeal. Writs of error are now dispensed with and the same method, notice of appeal, is pursued in transferring cases to the Supreme Court in both actions in equity and those at law. The case of Sherwood v. Sherwood, 44 Iowa 192, was an action in equity for divorce. The plaintiff appealed and assigned errors in this court. The defendant insisted that, because the plaintiff assigned errors in this court, the case must be tried on such errors, and this court said:

" But the erroneous act of the party cannot control the jurisdiction of the court. The question for us to decide is, how is the cause triable here? not, what course do parties pursue to bring it to trial. As a matter of fact it has been, and still is the habit of many attorneys who have extensive practice in this court to assign errors in equity cases, which no one claims are triable upon errors.

VI.

It is also urged that if the cause is triable de novo in this court, it ought to be dismissed for it is brought here improperly upon errors. Three cases found in 1 Greene are cited to support this proposition. It is a sufficient answer to this position to remark that the statutes under which those decisions were made in no respect resemble those in force to-day. Then law actions were removed to the Supreme Court by writ of error, chancery cases by appeal. Rev.St., 1843, pp. 115, §§ 67, 68; pp. 145-6, §§ 6, 7. Now writs of error are dispensed with and one course is pursued in bringing up all cases."

Although an appeal in an equitable action must be tried de novo in this court, while an appeal in a law action can be tried here only on errors specifically...