178 Iowa 757 | Iowa | 1915
Frank Bagnola died intestate in May, 1913, and at the time of his death was a citizen of the royal Italian government. The appellant Conte was then, and still is, the duly appointed and accredited consular agent of said government, for and in a district embracing the state of Iowa. On July 5, 1913, • Conte was duly appointed administrator of the estate of Bagnola, and he duly qualified and
“a citation shall issue to the person complained of, requiring him to appear and answer the complaint, and if he is not a resident of the county where it is made, notice thereof shall be served upon him in 'such manner as the court or judge thereof or clerk may direct.” No citation was served upon Conte. It appears, however, that Messrs. Clark & Claussen, duly licensed attorneys, at one time acted as attorneys for Conte, and avo may assume that it was in the conduct of administrator’s business on part of Conte as consular agent. In some of this work, Mr. Wilson, another duly licensed practitioner, has acted wátli Clark & Claussen. We may concede that the petition filed by Conte to be appointed administrator was signed and filed by Clark & Claussen and Mr. Wilson, as attorneys for Conte, and also that, while Wilson never had any express authorization to accept service upon or Avaive any notice, he had written authority from Clark & Claussen to act for them in all matters arising in the district court of Polk County. He admitted service of a citation requiring Conte to appear to the petition to remove, and forwarded the same to Clark & Claussen. It may further be conceded that both Clark & Claussen and Wilson had actual notice that the petition to remove had been filed; knew that a hearing thereupon was set; and, though the order of removal recites neither the appearance of parties or counsel, that these attorneys took part in such hearing — a concession which obviateá the need of considering either the argument that there was an appearance because the record recites the taking of an exception, or the effect upon that argument of Hamill v. Schlitz Brew
In 18 Cyc. 165 (Note), it is said that “errors of judgment not amounting to malfeasance are not sufficient cause for the removal of an administrator.”
In In re Estate of Fisher, 128 Iowa 626, where the estate owed no debts, we held it insufficient ground for removal that the administrator declined to sell railroad stocks which were
It is said in 18 Cye. 165 (Note), that all the administrator need exhibit is the ordinary diligence and caution of ordinarily prudent men in the conduct of their own business.
It is bad. faith that is interdicted. 18 Cyc. 233; In re Estate of Ring, 132 Iowa 216, at 222; In re Estate of Fisher, 128 Iowa 626, at 630; McFadgen v. Council, 81 N. C. 195.
It is thoroughly well settled that, where the statute prescribes grounds for removal, none others are available. And the statute does not make any of the matters charged in the petition to remove, á ground for removal. Code, Section 3416. Upon this thought, we have held it to be no ground for removal that the administratrix, after appointment, claimed practically all of the estate; after the payment of debts and expenses. Fry v. Fry, 155 Iowa 254. It follows that the removal was unwarranted, and also that the order of removal should have been vacated, unless it be that, for reasons, discussed later, such vacation would have accomplished nothing.
Supplemental Opinion.
Wednesday, December 13, 1916.
This appellant was fully advised that appellee asked us to affirm upon the express grounds that a claim against a certain railroad was the only asset of the estate; that money collected through settlement had all been disbursed under order of court, “and the sole heir and beneficiary has received and receipted for said money.” The brief of appellee made just this point. Were we to concede that the widow is not the sole 'heir, it' would not follow that we should now deal with the cause as though there were other heirs. Considering the point made by appellee, on application for rehearing, it may become of controlling importance what appellant did not do or say. He may so present a case as to lose the right, after decision, to have us do or find what might have been his due had he properly presented his claim; or if, to put it more strongly, he had not, in effect, misled the court into doing or failing to do what is now the subject of complaint. An appellant may not prevail unless he clearly advises the court of what errors he makes complaint. A failure to do this waives any point, no matter how well taken it-might have been if properly presented. It goes without saying that presentation which conceals a point, and is calculated
On original submission it was argued that, even if the widow was the sole heir, still the removal of the administrator was unlawful; that the right to sue for the death of the decedent belongs to the administrator, and not to the widow; that she could not delegate the right to sue; that she had no cause of action which she could settle; that neither a purported settlement by the widow nor a power of attorney from her would justify the removal of the administrator, and a refusal by said administrator to approve the settlement made shows no improper conduct on his part. It was no doubt unconsciously done, but had there been a studied effort it could not more effectively have given emphasis to almost everything other than a claim that the widow is not the sole heir. In this varied and specific assignment of what the widow was and was not, a:id of what she could and could not do, there is not a suggest:'on--that she must restore the proceeds of -the settlement because she has co-heirs. At all events, and beyond debate, there is nowhere a suggestion, a statement or assignment, or a proposition or an argument, that there should be a reversal because'the widow was not the sole heir; and that the position of appellee to the contrary rests upon what the record does not show. This led us into the error claimed, if we erred, and alone suffices. Our rules provide plainly that, unless some such point or proposition is made, it shall not be considered on rehearing. Why should appellant be permitted to first answer, now, the said affirmance point made by appellee on original submission? Why did he not say on original submission that the widow is not the sole heir?
II. Perhaps we should stop here. But there is such insistence that our failure to say or do something we might have, threatens the rights of poor, ignorant and easily-imposed-upon aliens, and the efficiency of consular service,