229 N.W. 853 | Iowa | 1930
I. The plaintiff's claim had its origin in July, 1919, when the plaintiff contracted to sell his farm in Iowa County to E.C. Mullin, a neighbor, for $48,000. Pursuant to this contract, a deed was executed by Doyle to Mullin on March 1, 1. EXECUTORS 1920. Mullin paid $12,000 of the purchase price, AND ADMINIS- and executed a mortgage for the balance, TRATORS: $36,000, together with a promissory note for a allowance like amount, due in 20 years. Catherine Mullin, and payment the wife of E.C. Mullin, joined in both note of claims: and mortgage. Prior to such date of settlement, belated Mullin had sold the farm to Bevins and Donohoe, filing as who assumed and agreed to pay the mortgage. On after- July 28, 1921, Mullin died; and on July 30th of thought. the same year, Catherine died. They were survived by one child, Mrs. Jennings, who is the defendant-administrator. In November of the same year, letters of administration were issued to her in both estates. This accounts for the double title carried herein. For convenience of discussion, we shall refer to the estate of E.C. Mullin only, though identical proceedings were had in both estates. The period for filing claims against the Mullin estate expired on November 17, 1922. The plaintiff filed his claim on November *855
2, 1923, and served notice on the executrix in the city of Chicago in January, 1924. In February, 1924, an order of allowance was entered on a purported default, and in the absence, and without the knowledge, of the executrix or her attorney, as claimed. At a later date, an application was filed by the executrix to set aside such allowance, upon several alleged grounds. The application was sustained, and the order of allowance was set aside, from which order an appeal was prosecuted to this court. See Jennings v. Doyle (Iowa),
The "equity" most forcefully contended for by counsel *857 is the fact that the claim was a just claim; that the Mullin estates were solvent; that no one had suffered prejudice by the delay; that, therefore, equity required that such just claim be paid. The argument has its appeal, but quite independently of the statute. It is an argument for amended legislation. As applied to the existing statute, it is quite subversive of it. If the justness of the claim is a sufficient equity to comply with the requirements of the statute, then the statute itself is an idle one. The requisite of justness is imperative, even when the claim is filed within the period of limitation. It is no less required after the period of limitation, even when peculiar circumstances entitling the plaintiff to equitable relief are approved. In other words, the justness of the claim is not a "peculiar circumstance," within the meaning of this statute. On the contrary, it is of the very essence of the claim itself.
A careful reading of the evidence in the case satisfies us that the plaintiff failed to prove peculiar circumstances, within the meaning of the statute. Such was the holding of the district court. Upon a careful consideration of all the evidence in this record, we find no fair basis for the claim that Simmons practiced any fraud upon the plaintiff, or that he failed in any duty resting upon him toward the plaintiff. There was no inconsistency in his respective relations to the plaintiff and to the administratrix of the Mullin estate. He had always been friendly with both families, and plaintiff knew it. Nor can it be held, upon this record, that the failure of the plaintiff to file his claim within statutory time was caused by any act on the part of Simmons. If the plaintiff had lacked information of any material fact, or had been misled as to any material fact, such a lack of information would be entitled to consideration as a "peculiar circumstance." The fact that the claimant had not heard of the death of his debtor or of the pendency of administration is one which often appears in this class of cases. No want of knowledge appears herein. The plaintiff at all times knew every material fact requisite to a proper understanding of his rights and of the statutory limitations upon them, as well as he knows them now. The only suggestion of ignorance of fact appearing in his evidence is that he did not know that Simmons had acted, or was acting, in the interests of the Mullin estate. We necessarily reach the conclusion that the plaintiff *858 failed to prove "peculiar circumstances," within the meaning of the statute.
II. The appellant assigns error upon the ruling of the district court in setting aside, in the year 1926, the previous order of allowance made in 1924. This appellant appealed from that order to this court. That order, and that alone, was 2. APPEAL AND involved in the former appeal. That order was ERROR: affirmed by an equally divided court, and by determi- operation of law. Such affirmance was effective nation and to give finality to the adjudication. That the disposition question presented by that appeal was close and of cause: doubtful is indicated by the equal division of affirmance the court. The result was no less effective on by divided that account. The general rule here enunciated court: is not challenged by appellant's counsel. The effect. theory upon which he contends for a review of that order of the district court is that such order was not in fact appealable; that, therefore, no jurisdiction was conferred upon this court by such appeal; that our former decision was, therefore, nugatory, and had no effect upon the order appealed from; and that the order thus appealed from still inheres in the final judgment of the district court, and as a part of its record.
This appellant was likewise appellant in the former appeal. His appeal was from that order, and from nothing else. On that appeal, the appellee challenged the appellant's right of appeal on the ground that such order was not 3. APPEAL AND appealable, and moved to dismiss the appeal. The ERROR: appellant contended for the appealability of the review: order. We sustained him in such contention, and scope and overruled the motion of appellee. Our ruling on ex-extent: that motion was not by a divided court. It was law of case. a finality, and became the law of the case. The appellant is not entitled, on this appeal, to have a review thereof or a rehearing thereon. Adams County v. B. M.R. Co.,
*859MORLING, C.J., and FAVILLE, KINDIG, and GRIMM, JJ., concur.