Wilcox v. Jackson

Decision Date09 December 1881
Citation10 N.W. 661,57 Iowa 278
PartiesWILCOX v. JACKSON
CourtIowa Supreme Court

[Copyrighted Material Omitted]

Appeal from Monroe Circuit Court.

THIS case was before us on a former appeal. See 51 Iowa 296, to which, for a statement in part of the case, reference is here made. The cause having been remanded to the court below, the defendant filed an amendment to his counter-claim as follows "That there are equitable circumstances entitling the defendant to relief and that the counter-claim though not proved within one year after the giving notice by the administratrix of her appointment is not barred.

Said equitable circumstances are as follows: Defendant filed said counter-claim in the office of the clerk of this court on the 27th of February, A. D. 1877, before the expiration of one year from the giving of notice aforesaid by the administratrix, duly sworn to as the law requires. That it was filed in the form it now appears, as the counter-claim in this case that was then pending; that the plaintiff was at that time present and in court appearing to the counter-claim.

That on the first day of March she filed a reply to the counter-claim denying each and every allegation therein; that this was still within the year from the giving notice by the administratrix; that no objection was made to the time of filing the claim or that it was barred. Defendant further states that the one year from the giving of said notice expired on the 2d day of March, A. D. 1877.

He further states that had not the plaintiff filed a reply on the 1st of March, and interposed this as an obstacle to the proof of the claim he would have proved it within the year. So he says that it is owing to the plaintiff's own act as aforesaid that the defendant was prevented from proving up said claim. He further states that had he filed the counter-claim for the September term, 1876, he could not have proved it at that term owing to the number of cases on the docket and amount of business before it, and the cause would have had to be continued, as it in fact was, and it would not have been proved.

Defendant further avers that the reason the case was not tried at the February term, 1877, was owing to the reply filed by the plaintiff raising the general issue and the press of business in court having precedence on the docket. He further states that ever since the filing of the counter-claim he was ready willing and anxious to try said case and prove it, and it was not through any hesitation, tardiness or delay on his part that it was not proved at once and before the year expired.

And defendant states that it was not until at the September term 1877, on the first day of October, the plaintiff thought of interposing the plea of the statute of limitations. On that day for the first time the plaintiff interposed the defense to the said counter-claim and filed an amendment to the reply, and still the case could not be tried at that term owing to the resistance of the plaintiff as aforesaid and the amount of business in court having precedence.

That it was not through any fault of defendant that it was not tried and it was continued to the February term, A. D. 1878.

So the defendant says he filed the claim within the year and but for the resistance of the plaintiff would have proved it within the year, and he insists that he should not be deprived of the right of recovery when the delay was caused by the plaintiff and the press of other business in the court.

The defendant filed a demurrer to this amendment to the counter-claim, which the court overruled. The defendant also filed a further amendment to his counter-claim, as follows:

"1st. That as a part of the contract stated in said counter-claim it was expressly agreed that said Jeremiah Wilcox should pay a certain note, made by this defendant as principal and said Wilcox as his surety thereon, to Monroe county for the use of the school fund for $ 500.00 secured by mortgage on this defendant's real estate and such payment when made by said Wilcox was to be payment to that extent on the debt to the defendant from said Wilcox for the cattle sold and delivered to him as shown in said counter-claim; that suit was brought in this court by said Monroe county on said note and mortgage against this defendant and his wife and judgment rendered against this defendant by this court February 26th, 1878, for $ 827.78 and $ 65 attorney's fees and costs and said mortgage foreclosed; that no part thereof has been paid.

"2d. He alleges that he resides in the northwest township of the county, and that during the year 1876, and especially previous to September of said year, he was almost constantly on or about his premises attending to his farming business which occupied about all his time; that he can neither read nor write, and during the years 1876-7 he took no newspaper published in said county, and prior to service of notice upon him in this case, to-wit: September 14, 1876, he was not aware, and had no knowledge that said Sarah J. was the administratrix of said Jeremiah Wilcox's estate; that prior to the filing of the counter-claim herein he had no information or knowledge in fact that said notice of said Sarah J's. appointment as administratrix of said estate had ever been given.

"3d. He further states that at the September term, A. D. 1876, of this court, he employed Perry & Townsend, attorneys at law of this court, to defend for this defendant in this case, and in case No. 880, in which said administratrix was plaintiff, and this defendant was defendant; that in pursuance of said employment, said attorneys prepared answers in each of said cases, and filed the same; that at or about the same time, he informed his said attorneys of his said claim against said estate for said cattle so sold and delivered, and employed them to prosecute the same, and he had a subpoena duly issued for his witnesses, by whom he expected to prove said claim, requiring them to appear and testify in said case at said September term, and that said witnesses attended this court at said term, for the purpose of testifying in regard to said claim.

"He further states that he is advised and believes, and so states the fact to be, his said attorneys at said September term of this court prepared the said counter-claim as it now appears except as to the verification for the purpose and with the intent of having the same duly verified and filed at said September term of said court; that he fully believed and relied upon said belief that said counter-claim had been duly filed at the said term of said court, and upon the continuance of said cause at said term, he returned to his residence. He further states that some few days prior to the February term of said court, 1877, he came to Albia, Iowa for the purpose of getting subpoenas for his witnesses, to prove up said claim, and did get the same and had his witnesses subpoenaed and in attendance, to prove up said claim whenever said claim could be reached for trial. That during all the time from said September term to the 27th day of February, A. D. 1877, he relied upon the full belief that said claim had been duly filed at the September term aforesaid, and that all things in that respect that the law requires had been complied with. That on the 27th day of February, 1877, he was informed by one of his attorneys that said claim had not been sworn to nor filed. Whereupon he duly verified the same and said claim was duly filed. He further states that the cause of the delay in the filing of said counter claim was the result of accident or mistake. That his said attorneys had prepared the answer in this and in case No. 880, and pleadings in numbers of other...

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12 cases
  • 666 W. End Ave. Corp. v. Palmer (In re Palmer's Estate)
    • United States
    • Iowa Supreme Court
    • April 10, 1931
    ...Iowa, 647, 158 N. W. 684;Craig v. Craig, 167 Iowa, 340, 149 N. W. 454;In re Camp's Estate, 188 Iowa, 734, 176 N. W. 795;Wilcox v. Jackson, 57 Iowa, 278, 10 N. W. 661; but the facts in said cases are not analogous with those in the instant case. The distinction between said cases and the ins......
  • In re Palmer's Estate
    • United States
    • Iowa Supreme Court
    • April 10, 1931
    ...176 Iowa 647, 158 N.W. 684; Craig v. Craig, 167 Iowa 340, 149 N.W. 454; In re Estate of Camp, 188 Iowa 734, 176 N.W. 795; Wilcox v. Jackson, 57 Iowa 278, 10 N.W. 661: but the facts in said cases are not analogous with those the instant case. The distinction between said cases and the instan......
  • Craig v. Craig's Estate
    • United States
    • Iowa Supreme Court
    • November 21, 1914
    ...and sufficient to justify a hearing upon the merits of the claim. Manatt v. Reynolds, 114 Iowa, 688, 87 N. W. 683;Wilcox v. Jackson, 57 Iowa, 278, 10 N. W. 661;McDermott v. McDermott, 138 Iowa, 351, 116 N. W. 122;Brewster v. Kendrick, 17 Iowa, 479;McCormack v. Cook, 11 Iowa, 267;Johnston v.......
  • McIntyre v. Liverpool, London & Globe Insurance Co.
    • United States
    • Kansas Court of Appeals
    • May 4, 1908
    ...loss was total or partial, and the court did not commit error in allowing her to do so. Dry Goods Co. v. Buchanan, 79 Mo. 532; Wilcox v. Johnson, 57 Iowa 278. (5) The question the amount of the loss was one for the jury, and the jury having spoken its word must be final with this court. Duf......
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