Phinny v. Warren

• Decision Date: 05 June 1879
• Citation: Phinny v. Warren, 52 Iowa 332, 1 N.W. 522 (Iowa 1879)
• Parties: ELIZA PHINNY ET AL., APPELLEE, v. JOHN H. WARREN, APPELLANT.
• Court: Iowa Supreme Court

52 Iowa 332

1 N.W. 522

ELIZA PHINNY ET AL., APPELLEE,

v.JOHN H. WARREN, APPELLANT.

Supreme Court of Iowa.

Filed June 5, 1879.

Appeal from Mahaska circuit court.

Action in equity upon a promissory note. The note was executed by one Conrad as principal and the defendant as surety, and made payable to one Joseph P. Phinny, who died intestate, March 22, 1867. The plaintiffs are the heirs of the intestate, and claim to be the owners of the note as such heirs. No letters of administration ever issued upon the intestate's estate. This action was brought after the lapse of five years from his death, but within ten years from the time the note matured. The plaintiffs set up as the ground of equitable jurisdiction, the lapse of the five years, and the fact that no letters have been issued. There was judgment for the plaintiffs. The defendant appeals.M. E. Cutts, J. A. Hoffman, and J. H. Warren, for appellants.

C. P. Searle and J. F. Lacey, for appellees.

ADAMS, J.

--The defendant insists that the plaintiffs have no remedy at law, because there has been no administration and no distribution, and no remedy in equity, because there is no ground of equitable jurisdiction.

If the time had not expired within which an administrator might be appointed, it would seem to be certain that the action could not be maintained. Haynes v. Harris, 33 Iowa, 516. But it is shown that the statutory period has expired, and that no administrator can be appointed. Whether the heirs can now be regarded as holding the legal title to the note, we need not determine. They acquired an interest in it at the death of the intestate, subject only to such rights as an administrator might have if one should be appointed. Perryman v. Green, 39 Ala. 133; Thompson v. Thomas, ...