Ontjes v. McNider
| Decision Date | 18 September 1934 |
| Docket Number | No. 42521.,42521. |
| Parties | ONTJES v. McNIDER et al. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; M. F. Edwards, Judge.
An action involving a claim against an estate. There was an attempt to implead other parties and inject other issues. Motions to strike and dismiss were overruled in part by the trial court. Appeals are prosecuted by the estate and other parties sought to be made defendant.
Reversed and remanded.
Smith & Feeney, of Mason City, and Davis, McLaughlin & Hise, of Des Moines, for appellants.
F. A. Ontjes, of Mason City, for appellees.
This case comes to us on an appeal from rulings upon motions to strike and dismiss. For an understanding of the questions involved in this appeal it is necessary that we review the situation and proceedings in the trial court.
C. H. McNider, a resident of Mason City, Iowa, died October 30, 1928. His will was admitted to probate in Cerro Gordo county on the 4th day of December, 1928. His son, Hanford McNider, and his widow, May H. McNider, were appointed executors, and notice of their appointment and proof of publication thereof was filed in the office of the clerk, December 27, 1928.
On the 6th day of August, 1931, one F. A. Ontjes, who claims to be a stockholder in the Northwestern States Portland Cement Company, a West Virginia corporation, claiming to act in behalf of said corporation and in behalf of himself and all other stockholders similarly situated, filed a claim in probate against said estate. The claim covers fourteen pages of the printed abstract, and involves an aggregate sum of $2,393,143, made up of various items claimed to be due from the C. H. McNider estate, by reason of certain transactions claimed to have been conducted by the said C. H. McNider while he was an officer and director of the said cement corporation. And it is claimed that he should be held to have been acting as trustee for the cement company in transactions carried on in his individual name in reference to the purchase of shares of corporate stock of other and independent cement companies. The claim also involves alleged excess salary and bonus payments made to the said C. H. McNider by the said Northwestern States Portland Cement Company, while he was acting as an officer and director of said company.
On the 15th day of October, 1931, the claimant filed in probate a petition for the allowance of said claim which contains practically all of the allegations as contained in the claim as filed, and prays that the claim be allowed against the estate in the total sum above mentioned.
On December 18, 1931, the claimant filed an amendment to his petition for allowance of the claim in which several other corporations and May H. McNider and Hanford McNider were added as defendant; the claimant asking in this amendment that the claim as filed be established and allowed as against the rights of the included corporations, and that the executors of C. H. McNider estate be ordered to pay the same.
On April 19, 1932, the claimant filed what is designated as a second amendment to his petition for allowance of the claim. Included in this so-called second amendment was a prayer for an accounting as to the assets of the C. H. McNider estate, and that claimant have judgment against certain corporations and the widow and son of C. H. McNider for the amount of the claim as established.
On the 2d day of May, 1932, motions to strike and dismiss the so-called second amendment to petition for allowance of claim were filed by all of the named defendants. These motions were based upon the grounds that the pretended causes of action as set forth in the said amendment to petition for allowance are not within the jurisdiction of a probate court; that they constitute a misjoinder of causes of action and a misjoinder of parties; that the facts alleged do not entitle the claimant to any relief against the individual defendants other than the estate of C. H. McNider; that the said claims as contained in said amendment cannot be prosecuted by the same kind of proceedings as the original claim filed against the C. H. McNider estate; and that said amendment attempts to allege claims against various defendants which are not against all of such defendants.
On May 13, 1932, said motions were ruled upon by the trial court (Hon. M. F. Edwards, Judge, presiding), overruling the same only to the extent that claimant be permitted to prove his claim in the probate proceedings in the matter of the estate of C. H. McNider, deceased; the trial court holding that the first proceeding necessary on the part of the claimant is the establishment of the claim as filed against the estate, and that in the event such claim is finally established, that the matter of additional relief against other parties attempted to be made defendants by the amendments to the petition for allowance might be transferred to equity and there tried, if the occasion arises.
On May 18, 1932, plaintiff filed what is designated an amended petition in equity, which covers twenty pages of the abstract, includes all of the claims and allegations made in the original claim filed against the estate and in the petition for allowance thereof, and the several amendments thereto, also making all of the defendants named in the amendment to petition for allowance of claim parties defendant.
On May 20, 1932, the executors of the McNider estate filed an answer to the original claim in probate.
On May 21, 1932, the claimant filed a motion to transfer the entire proceedings, including the allowance of the original claim, to equity. Motions to strike and dismiss the so-called amended petition in equity were filed by all of the named defendants, based upon the grounds that the so-called amended petition contains simply repetition of the original petition for allowance of claim and amendments thereto; that the so-called amended petition in equity presents issues that cannot be tried in the probate proceedings, which is a law action; that the matters therein alleged are not within the jurisdiction of a probate court, and that the jurisdiction of the probate court to hear and determine a claim against the estate cannot be ousted or defeated by alleging or presenting equitable issues, as against the estate, its executors, or third persons; that the so-called amended petition in equity presents a misjoinder of causes of action and of parties defendant.
On September 3, 1932, the trial court (Hon. M. F. Edwards, Judge) made a ruling upon the foregoing motions, and filed a written ruling sustaining all of said motions.
On September 3, the court also overruled claimants' motion to transfer the whole proceedings to equity.
On October 12, 1932, the claimant filed what is designated an amendment to his petition, which in effect restates and reiterates allegations of prior pleadings filed by him.
On October 24, 1932, motions to strike and dismiss this amendment were filed, based upon practically the same grounds as prior motions to the prior pleadings.
On June 28, 1933, a written ruling and order was filed by the trial court sustaining said motions to strike and dismiss.
On August 25, 1933, the claimant filed what is designated as a substituted petition in three counts containing practically the same allegations as were contained in the prior petitions and amendments. There are no separate prayers to the several counts to this substituted petition, but there is a general prayer therein contained which prays the same relief as in prior pleadings.
On September 1, 1933, the claimant filed motion for leave to file separate petitions in reference to each count of the substituted petition, which motion was by the court (Hon. T. A. Beardmore, Judge) on the 20th of October, 1933, overruled.
On October 24, 1933, the claimant filed what is designated second substituted petition, in which he makes as defendants, the executors of the C. H. McNider estate, the Northwestern Portland Cement Company of Iowa, May H. McNider, and Hanford McNider, individually and as trustees, and the First National Bank. This pleading is also in three counts and in which the same statements and allegations are contained as in prior pleadings with the same general prayer.
On the 1st day of November, 1933, motions to strike and dismiss said second substituted petition were filed by all of the defendants therein named, based upon practically the same grounds as is contained in prior motions, with the additional ground that all matters set up in the so-called second substituted petition had been determined adversely to the claimant in prior rulings of the court, and that the attempt to again file practically the same petition and make the same parties defendants was an attempt to evade the prior rulings of the court and prior judgment dismissing the original defendants out of the proceeding, and that such attempt constitutes a violation of the rights of the defendants and a contempt of the court, and that the said prior rulings constitute and are a full and complete adjudication as against the claimant.
On January 6, 1934, the court entered a written ruling upon these motions to strike and dismiss the second substituted petition and sustained the motions as to counts two and three of the second substituted petition and overruled the motions as to count 1. The court also extending leave to claimant to file separate petitions as to counts 2 and 3, if he so elect.
From the order of court overruling the motions as to count 1, and the granting of leave to file separate petitions as to counts 2 and 3, this appeal is prosecuted.
[1] It will be noticed by the above brief reference to the many pleadings filed in this proceeding that the claimant has been most persistent in presenting to the trial court his theory of his rights as against the estate involved, and the various other claimed defendants. The abstract and amendments thereto cover more...
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