Rindfleisch v. Mundt Estate, 48968

• Decision Date: 19 June 1956
• Docket Number: No. 48968,48968
• Citation: 77 N.W.2d 643,247 Iowa 1124
• Parties: Gerald RINDFLEISCH, Irene Rindfleisch, Ann Jutrzenka, Paul Pieckarski and Margaret Pieckarski, Appellants, v. Gus H. MUNDT ESTATE and Marie Mundt, Executrix of Said Estate, Appellees.
• Court: Iowa Supreme Court

Page 643

77 N.W.2d 643

247 Iowa 1124

Gerald RINDFLEISCH, Irene Rindfleisch, Ann Jutrzenka, Paul Pieckarski and Margaret Pieckarski, Appellants, v. Gus H. MUNDT ESTATE and Marie Mundt, Executrix of Said Estate, Appellees.

No. 48968.

Supreme Court of Iowa.

June 19, 1956.

Rehearing Denied Sept. 21, 1956.

Edson & Hamilton, Storm Lake, and Orth, Riedl & Orth, Milwaukee, Wis., for appellants.

Page & Nash, Denison, and Erwin H. Hansen, Manning, for appellees.

PETERSON, Justice.

On September 2, 1952, the five claimants were riding in an automobile, owned and driven by claimant, Gerald Rindfleisch, proceeding easterly on Highway 30 through Town of Glidden, Iowa. Gus H. Mundt was driving north on a street in the town and drove his car onto primary 30 and into the car occupied by claimants. Mr. Rindfleisch's automobile was damaged and some personal injuries were sustained by all claimants. They were citizens of Milwaukee, Wisconsin, and on September 11th they retained an attorney in said city. The parties had knowledge with reference to Mr. Mundt's liability insurance company and the attorney wrote the company. It referred the claims to an adjusting agency in Milwaukee.

On March 14, 1953, approximately six months after the accident, Mr. Mundt died. His death was not due to injury in connection with the accident. His will was filed, and on March 26, 1953, notice to creditors was posted in accordance with order of court. In April of 1953 there was some correspondence between the attorney for Mr. Mundt's estate and the production department of the insurance company in connection with renewal of policy. The attorney notified the production department that Mr. Mundt was deceased. The claim department of the company had no knowledge of his death until June, 1954, at which time it received the information from their attorney at Denison.

Claimants and their Milwaukee attorney were slow in prosecuting the claims, and it was not until August 31, 1954, two days before the expiration of the two-year Statute of Limitations, I.C.A. § 614.1, that the claims were filed in the estate. This was eleven months after the time for filing claims had expired. The five claims were then filed under Sec. 635.68 of the Code, I.C.A., alleging peculiar circumstances as justification for failure to file claims prior to expiration of statutory period. Hearing was held on the question as to whether or not such circumstances did exist. The trial court decided they did not, and ruled the claims were barred. From such ruling claimants appeal.

I. Section 635.68, Code 1954, I.C.A., pertinent to this case, is as follows:

'All claims not filed as hereinbefore provided, within six months from the giving of the notice aforesaid, will be barred, * * * unless peculiar circumstances entitle the claimant to equitable relief.'

There have been approximately 60 'peculiar circumstance' cases before this court. About 40 per cent have been decided in favor of the presence of such circumstances.

As to whether peculiar circumstances exist which permit the filing of claims after expiration of statutory limitation depends on the circumstances of each case. Brewster v. Kendrick, 17 Iowa 479; Johnston v. Johnston, 36 Iowa 608; In re Palmer's Estate, 212 Iowa 21, 236 N.W. 58; First-Trust Joint Stock Land Bank of Chicago v. Terbell, 217 Iowa 624, 252 N.W. 769; St. Paul Mercury Indemnity Co. v. Nyce, 241 Iowa 550, 41 N.W.2d 682; In re Will of McPheeters, 233 Iowa 199, 8 N.W.2d 588; Gross v. Hocker, 243 Iowa 291, 51 N.W.2d 466.

There have never been two cases exactly alike. Some are similar in certain respects but not as to all questions involved. The Code section involved in this case is co-extensive with the statutory history of our State. Justice Wright in 1864 in case of Brewster v. Kendrick, supra, made a clear and comprehensive statement of the elements involved in the statute, which statement has been approved many times by this court, and has formed the general basis for many decisions. He said: 'We are not disposed to recognize any rule or countenance any practice which will tend to retard the speedy settlement of estates. We believe the spirit of the statute accords with the interest of heirs and all those interested in the assets of the estate, in requiring administrators to be prompt and expeditious in the discharge of their duties, and creditors to be diligent in the presentation and establishment of their claims. And yet there may be cases, and the section above quoted recognizes them, when the delay shall not operate as an absolute bar, and when, to deny the creditor relief, would be manifestly inequitable and unjust. Negligence, however, can never afford a passport to the relief contemplated by the statute. The creditor should be diligent, and the amount of his diligence is always to be measured by the circumstances surrounding him, taken in connection with the condition of the estate, and its administration at the time the relief is sought. Each case must be determined, to a great extent, from its own circumstances, keeping in view the spirit of the law, and the rights and duties belonging to and devolving upon those interested in establishing and resisting the claim.'

II. While there are differences between this case and the facts of previous cases, there have been established through the years certain fundamental rules as to elements which must be present before peculiar circumstances can be approved.

1. Claimant must establish diligence, or excuse for lack of diligence.

2. The burden is on claimant to show peculiar circumstances.

3. This case is not triable de novo. The findings of fact of the trial court are binding on this court, if there is substantial evidence to sustain the findings.

III. There has been general accord in many previous decisions, that if a claimant desires to establish peculiar circumstances he must show he has been diligent, and has not been negligent in connection with failure to file within the statutory time. Brewster v. Kendrick, supra; Lacey v. Loughridge, 51 Iowa 629, 2 N.W. 515; Bates v. Remley, 223 Iowa 654, 273 N.W. 180; Taylor v. Jackson, 213 Iowa 844, 239 N.W. 519; In re Wagner's Estate, 226 Iowa 667, 284 N.W. 485; First-Trust Joint Stock Land Bank of Chicago v. Terbell, supra; Federal Land Bank of Omaha v. Bonnett, 226 Iowa 112, 284 N.W. 97; In re McPheeters' Will, supra.

Claimants and their Milwaukee attorney were not diligent. The claims were placed with the attorney on September 11th. He did not write the Insurance Company until October 15th. Then he did nothing until December 8th, when the adjuster for the company asked for medical reports. Not hearing, the adjuster again asked for them on January 5, 1953. In March the attorney talked with the adjuster, but he only furnished a partial list of medical expenses. It was not until April 23, 1954, 1 1/2 years after the accident that the attorney sent final medical bills. On April 28th, he sent a list of special damages claimed. On July 6th the adjuster received statement of time lost. There is no evidence that any of the claimants were incapacitated for any extended length of time. On August 5, 1954, the attorney reduced his demands for settlement. The two-year limitation was drawing to a close, so on August 27, 1954, the Milwaukee attorney referred the claims to Iowa counsel. On August 31st, two days before end of two-year limitation the claims were filed. This is not a story of diligence. The Milwaukee lawyer could have referred the claims to Iowa counsel promptly. His excuse is he was negotiating with the Insurance Company adjuster. The evidence shows he was slow and negligent in dealing with the adjuster. Neither the Insurance Company nor adjuster were under obligations to prosecute the claims. Claimants failed in the first step toward establishment of peculiar circumstances. They neither plead nor prove diligence. In re McPheeters' Will, supra [233 Iowa 199, 8 N.W.2d 591], we said: 'In the present case there is absolutely no pleading showing diligence on the part of appellant in seeking to have her claim filed or allowed. She pleads nothing to show that she was in any way misled or misinformed by either the administratrix or the attorney for the estate. She pleads nonresidence, lack of notice of the change in the law and the fact that the estate was unsettled and that there were funds sufficient to pay the claims against the estate, including her own claim. These in and of themselves do not meet the requirements of the law; there must be a showing of diligence of some valid excuse for failure thereof. The record fails to make any such showing.'

IV. Claimants must carry the burden in a matter of this nature. The legislature has fixed a six months limitation on filing claims in order to insure expeditious closing of estates. The door has been left open in case of peculiar circumstances. This is the exception; not the rule. There must be peculiar facts shown to secure benefit of the exception. It cannot be invoked as a matter of course. The rule cannot be otherwise; if it was, the effect of the limitation would be destroyed. Des Moines Transp. Co. v. Haring, 238 Iowa 395, 27 N.W.2d 210; In re McPheeters' Will, supra; Hagen v. Nielsen, 225 Iowa 127, 279 N.W. 94, 281 N.W. 356; Gross v. Hocker, supra; Jackson Wholesale Florists v. Schappaugh Floral, 246 Iowa 1189, 70 N.W.2d 154. In Gross v. Hocker, supra [243 Iowa 291, 51 N.W.2d 470], this court stated: 'The burden rests on a claimant to allege and prove peculiar circumstances which entitle him to equitable...