79 Iowa 210 | Iowa | 1890
I. Simon Doran was appointed administrator of the estate in September, 1885. Notice of administration was given on the fourteenth day of that month. The claim of Day against the estate was filed on the eighth day of October, 1886. It was founded on a promissory note. In the statement of the claim no reference was made to the fact that it was not filed within twelve months of the giving of notice of administration, as required by section 2421 of the Code. On the ninth day of November, 1886, the administrator made a report to the court, in which it appears that the estate was then fully settled, except the claim of Day; and reference was made to the fact that the claim was not filed within the year for filing claims, and that he had not allowed the sam e. On the twenty-eighth day of September, 1887, he filed another report, in which he referred to the claim of Day as follows: “I further report that the John M. Day claim remains in the same condition as at my last report.” On the fifteenth day of December, 1887, the following proceedings were had in said court:
“No. 1559. Probate. Estate of Samuel Hedges, deceased. Proceedings on claim of John M. Day. Piled, October 8, 1886. John M. Day filed petition claiming from Simon Doran, administrator of above estate, $535.80, including interest on a certain promissory note, executed October 29, 1878, for three hundred dollars, by A. J. Kent and Samuel Hedges, which note is due, wholly unpaid, and his property, and asks that same be established and allowed as a claim against said estate. Duly verified by John M. Day. Order allowing claim: Now, on this day, this cause coming on*212 for hearing upon the petition of John M. Day for the allowance of a claim against said estate, filed after the expiration of the year allowed for the filing of claims against the estate, and the plaintiff being present in person and by attorney, and the coin't, having heard the evidence offered by the parties, finds that there are good and sufficient equitable grounds shown by the plaintiff why said claim was not proved within one year from the appointment of said administrator, and that said claim is not barred by the statute of limitations, but is a valid and subsisting claim against said estate, to the amount thereof, with interest; said liability being as surety upon the note sued on. It is, therefore, ordered and adjudged that the plaintiff John M. Day have and recover of Simon Doran, as administrator of the estate of Samuel Hedges, the sum of $573.30, with interest from this date at ten per cent, per annum, and also the costs of this suit; and it is ordered that the same be paid by said administrator out of the assets of said estate, — to all of which the administrator excepts.
“Marcus Kavanagh, Jr., Judge.”
On the twentieth day of March, 1888, the administrator filed the following supplemental report:
“ Samuel Hedges’ Estate. Comes now the administrator, Simon- Doran, and amends his report filed September 28, 1887, by showing * * * that in this suits have been tried, and since said report was filed the John M. Day claim has been allowed, thus making an additional claim of $573.30, with interest at ten per cent, since December 15, 1887. I was obliged to attend said trial with counsel, and I ask as compensation the $21.77, being balance of two and one-half per cent, in full, as claimed in report filed November 9, 1886, and I ask an order for payment of the Day claim, as well as balance due myself, and ask that, upon filing vouchers showing payment of same, that I be discharged.
“ Simon Doran.”
The present proceedings were commenced on the twenty-sixth day of March, 1888, and the- papers filed by the plaintiffs attack the report, and except thereto,
We do not think that the case of Dessaint v. Foster, 72 Iowa, 639, cited by counsel for appellant, is in conflict with the views herein expressed. In that case an administrator sought to set aside the allowance of a claim against an estate, made in his absence, on the ground that the claimant had no valid -claim against the estate. It was held that the order of allowance might be set aside in a proper case. But in the case at bar the administrator was not absent when the order was made. He was present, and a full hearing was had, and, so far at least as the rights of the claimant are involved, it must be regarded as an adjudication.
This disposition of the case renders -it unnecessary to determine other questions argued by counsel.
Aeejrmed.