Camilla Conley RITTER, Appellant, v. Roger DAGEL, Ralph Newport, Arthur Conley, Jean Conley Brokaw, and Marcia Conley Grupp, Appellees.
No. 52737.
Supreme Court of Iowa.
Feb. 6, 1968.
VI. Plaintiff also claims the baggage had been delivered to her and redelivered to defendant who then became a warehouseman. This theory is untenable. The tariff provides for free storage up to 72 hours as part of the baggage service. The consideration for such service flows from purchase of the ticket. There was no transfer of possession of the eight bags such as would constitute a delivery and redelivery here. Plaintiff alleges defendant was a bailee for hire. Her theory would make defendant a gratuitous bailee. If defendant is a bailee for hire it must necessarily be such as a common carrier under the facts in this case. No other consideration is shown.
VII. Plaintiff also contends defendant‘s tariff does not apply because one of the two lost bags measured 27 inches by 24 inches (the tariff limits size to 24 by 24). Neece v. Richmond Greyhound Lines, supra, gave similar small variation as reason for defendant taking control of the passenger‘s bags. The situation here is not the same. We are not prepared to hold a deviation in size of the luggage of this magnitude vitiates the tariff.
For the reasons noted in divisions II through V the case is reversed and remanded for trial.
All Justices concur, except LARSON, J., who concurs in the result.
Lawyer, Lawyer, Ray & Crouch, Des Moines, for appellant.
Joy, Wifvat & Poffenberger, Perry, for appellees.
GARFIELD, Chief Justice.
This appeal involves an important question as to the time within which a law action to set aside probate of a will under
The trial court held merely filing the petition is insufficient. We affirm the decision.
I. On September 7, 1965 Arthur T. Conley, a brother, filed with the clerk of the district court of Dallas County the will of R. M. Conley, deceased, together with his petition for probate thereof and appointment of petitioner and Roger Dagel as executors. On the next day the will was admitted to probate and Arthur T. Conley and Roger Dagel were appointed executors by the clerk of the court. No notice of filing the petition or hearing thereon was given prior to making the order.
The appointees filed their oaths as executors, letters of appointment issued and notice of probate, dated September 8, was published on September 10 and 17, 1965 in strict compliance with
The notice, addressed to all persons interested in the estate, recited: “any action to set aside said will must be brought in the district court of said county within one year from the date of the second publication of this notice, or thereafter be forever barred.” (emphasis added) This is the exact language of the form for such notice found in
Plaintiff, a daughter, on September 10, 1966 filed her petition at law to set aside probate of the will as not properly executed and the result of undue influence. On the same date an original notice of the filing of the petition was delivered to the sheriff of Dallas County. However, the notice recited the petition was on file with the clerk of the district court of Polk County and re-
On September 20, 1966, a year and three days after the date of the second publication of the notice of probate of will and appointment of executors above referred to, a proper original notice of the filing of plaintiff‘s petition to set aside probate of the will was delivered to the sheriff of Dallas County to be served on Roger Dagel, a co-executor, only defendant to the action residing in Dallas County. This notice was served on Dagel September 22, 1966.
On September 29, 1966 defendants to plaintiff‘s action filed their special appearance thereto challenging the court‘s jurisdiction on the ground the first original notice, requiring appearance at Des Moines, county seat of Polk County, was void. In her resistance to this special appearance plaintiff asserted that merely filing her petition to set aside probate of the will within one year after the date of the second publication of the executors’ notice thereof conferred jurisdiction on the Dallas County court to determine the matter, irrespective of the contents of the first original notice.
Defendants’ special appearance was sustained as to the original notice first served upon them. No complaint has been made of this ruling nor is it here contended, as it was in the resistance to the special appearance just referred to, it was unnecessary to serve, or deliver to the sheriff for service, an original notice of plaintiff‘s action.
Thereafter defendants filed answer to plaintiff‘s petition alleging it was barred by limitations because no valid original notice thereof was served or placed for service until more than a year from the date of the second publication of the notice of probate.
In her reply to defendants’ answer plaintiff alleged the order admitting the will to probate was entered without notice or appearance by anyone, her petition to set aside probate was filed before entry of an order approving the final report and therefore the order for probate was reviewable by the court. Also that filing plaintiff‘s petition on September 10, 1966 met the requirement of
On defendants’ motion for adjudication of law points under rules 105 and 176 Rules of Civil Procedure the trial court held, as indicated at the outset hereof, that merely filing plaintiff‘s petition to set aside probate of the will within a year after the date of the second publication of notice of probate of the will, without at least delivering original notice thereof to the sheriff of the proper county with intent that it be served immediately, was insufficient to toll the statute of limitations for the commencement of such an action as plaintiff‘s.
II. Plaintiff relies upon two code sections, principally
The quoted section codifies the rule applied by many decisions of ours under sections 638.9, 638.10 Iowa Code, 1962 and earlier codes prior to the adoption of our present Probate Code by the Sixtieth G.A. in 1963. In re Estate of Swanson, 239 Iowa 294, 305–307, 31 N.W.2d 385, 392 and citations; In re Estate of Jenkins, 245 Iowa 939, 941, 65 N.W.2d 92, 93 and citations.
The other section on which plaintiff relies, although apparently less strongly, is
From this it is argued in effect the statute of limitations for bringing such an action as plaintiff‘s is tolled by merely filing the petition in the proper court within the year even though original notice thereof is not served or delivered for service to the
III. In seeking the meaning of the code sections plaintiff relies on and others, the entire Probate Code of which they are part should be considered. “Each section must be construed with the act as a whole and all parts of the act considered, compared and construed together.” Bruce v. Wookey, Iowa, 154 N.W.2d 93, 94, citing Manilla Community School District, etc. v. Halverson, 251 Iowa 496, 101 N.W.2d 705. See also Ahrweiler v. Board of Sup‘rs, 226 Iowa 229, 231, 283 N.W. 889; Everding v. Board of Education, 247 Iowa 743, 747, 76 N.W.2d 205, 208 and citations; Rath v. Rath Packing Co., 257 Iowa 1277, 1284-1285, 136 N.W.2d 410, 414.
Bruce v. Wookey holds a claim against a decedent‘s estate was barred under our Probate Code for failure of claimant to file request for hearing within 20 days after the claim was disallowed.
The Manilla Community School District opinion, supra, points out it is not permissible to rest the interpretation of a legislative act upon any one part or to give undue effect thereto. (pages 501-502 of 251 Iowa, page 708 of 101 N.W.2d.)
We think the rule expressed in Bruce v. Wookey and many other Iowa precedents leads to an affirmance of the trial court‘s decision here.
IV.
“Such notice shall be substantially in the following form:”
This statute proceeds to set out in detail the form of notice which shall be published. It designates the court and county in which the will was probated, gives testator‘s name, is addressed to all persons interested in his estate, gives the date on which the will was admitted to probate and the name of the executor appointed. This recital is included in the statutory notice: “Any action to set aside said will must be brought in the district court of said county within one year from the date of the second publication of this notice, or thereafter be forever barred.” (emphasis added)
Following the recital just quoted, the statutory form further provides for notice that all persons indebted to the estate are requested to make immediate payment to the executor and all creditors shall file their claims “within six months from the second publication of this notice (unless otherwise allowed or paid)” or “such claim shall thereafter be forever barred.”
It is significant that the provision we have italicized in the first paragraph of
Prior to adoption of the Probate Code, the applicable part of
It thus seems clear it was the purpose of the legislature to shorten the time for commencing actions to set aside probate of a will from the two years specified in
So far as now pertinent,
This last section points up the fallacy of the assertion, previously referred to, in plaintiff‘s resistance to defendant‘s special appearance that merely filing her petition to set aside probate of the will within the year from the second publication of the notice of probate conferred jurisdiction on the court to determine validity of the will, irrespective of an original notice. As before indicated, we do not understand plaintiff makes such a contention here although she maintains, as she must, service of original notice or its delivery to the sheriff for service need not be made within the year.
It is plain the Rules of Civil Procedure, by express provisions of our Probate Code, apply to such actions as plaintiff‘s. We do not understand this is disputed.
R.C.P. 48 states: “Commencing actions. A civil action is commenced by serving the defendant with an original notice.” R.C.P. 49 broadens 48 on the question here involved. It provides: “Tolling limitations. For the purpose of determining whether an action has been commenced within the time allowed by statutes for limitation of actions, whether the limitation inheres in the statutes creating the remedy or not, the delivery of the original notice to the sheriff of the proper county with the intent that it be served immediately * * * shall also be deemed a commencement of the action.” (emphasis added)
In determining whether plaintiff‘s action was “brought” within the year from the second publication of notice of probate as
The requirement of
Rules 48 and 49 supersede statutes to like effect of long standing, as far back as sections 1714-1715 and 1663 Code 1851. The legislature could hardly have intended by the enactment of
In connection with this quotation it is noted we have repeatedly held our Rules of Civil Procedure, in effect since 1943, have the force and effect of statute. We have also held many times that for the purpose of tolling the statute of limitations an action is commenced by service of original notice or delivery thereof to the proper sheriff with intent it be served immediately. Several of our precedents to such effect are cited in Anno. 27 A.L.R.2d 236, 285-286. One is Fernekes v. Case, 75 Iowa 152, 39 N.W. 238, where a fatally defective notice was served during the statutory period and a valid notice was not served or delivered for service until after the limitation period expired. It was held the action was barred. Pendy v. Cole, 211 Iowa 199, 201, 233 N.W. 47, 48, approves Fernekes v. Case. Another similar precedent is Jones & Magee Lbr. Co. v. Boggs, 63 Iowa 589, 591, 19 N.W. 678.
We are not to be understood as holding service or delivery for service of the original notice of such an action must be made upon all defendants within the year. Additional interested parties may be added when they become known.
In Ditz the executors served notice on the other interested parties of the probate of the will, thus shortening to one year the period for bringing action to set aside probate under
V.
And the next section provides: ”
We think this from 50 Am.Jur., Statutes, section 367, pages 371-372, has application here: “It is an old and familiar principle * * * that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision. Additional words of qualification needed to harmonize a general and a prior special provision in the same statute should be added to the general provision, rather than to the special one.”
The United States Supreme Court has frequently used the language just quoted and we have approved it at least three times. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704, 708, and citations; Crawford v. Iowa State Highway Comm., 247 Iowa 736, 740, 76 N.W.2d 187, 189-190; State v. Flack, 251 Iowa 529, 535, 101 N.W.2d 535, 539; Rath v. Rath Packing Co., 257 Iowa 1277, 1288, 136 N.W.2d 410, 416.
The above rule is no less applicable here even though
A rule many times applied by us, closely related to the one quoted above, “is that where a general statute, if standing alone, would include the same matter as a special statute and thus conflict with it, the latter will prevail and the former must give way. The special provision will be considered an exception to or qualification of the general one. (citations).” Rath v. Rath Packing Co., supra; State v. Halverson, Iowa, 155 N.W.2d 177, 181.
Kruse v. Gaines, 258 Iowa 983, 986, 139 N.W.2d 535, 536, cites nine Iowa decisions and other authority for “the basic principle that when a general statute is in conflict with a specific statute, the latter ordinarily prevails, whether enacted before or after the general statute.” (emphasis added)
Our conclusion on the point now considered finds support in Hoover v. Hoover, 238 Iowa 88, 92–93, 26 N.W.2d 98, 100, under somewhat different facts. There the clerk admitted a will to probate on notice published only once on the second day before the date of the hearing. It is apparent such a notice would not be likely to reach interested parties and would be little better than no prior notice. In a law action to set aside probate of the will on grounds of lack of due execution, mental incompetence and undue influence we held contestants who did not proceed under section 632.3 Code 1946 to review the clerk‘s order for notice could not attack it “when the statutes provide an ample remedy for review in the court below.”
In lieu of proceeding under
In In re Estate of Pierce, 245 Iowa 22, 25-28, 60 N.W.2d 894, 896-898, heirs objected to the executor‘s final report on the ground the clerk‘s order for notice of hearing on probate of the will violated due process by providing for only one publication in a newspaper and posting in three public places when the addresses of the objectors were known or easily discoverable. Reliance was on Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865.
The Pierce opinion rejects the contention, holds the probate of the will was valid and the heirs were not thereby deprived of the right to contest the will in an original action brought within the statutory period of limitation (then two years from the time the will was filed for probate and notice thereof given). The opinion also reviews our prior decisions on the effect of original admission of a will to probate without contest and holds it establishes nothing but its due execution and publication and authorizes the executor to proceed with administration of the estate.
In re Estate of Marty, 256 Iowa 74, 78, 126 N.W.2d 303, 305, cites In re Estate of Pierce; Kelly v. Kelly, 158 Iowa 56, 56-61, 138 N.W. 851, 852–853, and section 633.38 Code 1962 for this: “In Iowa, admission of a will to probate is evidence of its due execution, and no more, in the absence of a contest.”
Further, we think the fact the clerk‘s order admitting the will to probate was made without notice given prior thereto, as
Not until plaintiff failed to bring her action within the year, after having failed
While the appeal mainly involves questions of statutory construction, we may observe that no claim of violation of due process or other constitutional right is asserted. “And it is important to observe that due process does not require, as to all proceedings, that notice be given prior to the initiation of the proceedings.” 16 Am.Jur.2d, Constitutional Law, section 564, page 969. Precedents cited in the footnote, including Hanover Nat. Bank of City of New York v. Moyses, 186 U.S. 181, 192, 22 S.Ct. 857, 46 L.Ed. 1113, 1120-1121, support the text.
Similarly, 16A C.J.S. Constitutional Law § 619 c, pages 811-812, states notice “need not be given in all cases at the very inception of the proceedings.”
Generally in many proceedings the requirement of due process for notice is met where, as here, there is a proper notice and opportunity for a de novo hearing on review of the initial order. Id. at page 801. See also Hansen v. Haugh, Iowa, 149 N.W.2d 169, 174-175 and citations.
Although
The judgment is
Affirmed.
All Justices concur except LeGRAND and BECKER, JJ., who dissent.
LeGRAND, Justice (dissenting).
I respectfully dissent.
Prior to the enactment of the Probate Code in 1963, a proceeding to set aside a will was an independent action which was required to be brought within the period set out in what was then subsection 3 of section 614.1 of the Code of Iowa.
That subsection was repealed at the time the Probate Code was adopted, and we now have a new procedure by which one may challenge the validity of a will. The Probate Code did not, as the majority suggests, merely shorten the period for filing a will contest from two years to one, which could have been accomplished by a simple amendment to section 614.1(3); on the contrary it effected basic changes in the procedure itself.
Part 5 of the Probate Code deals with “Actions to Set Aside or Contest Wills.” It covers three possible methods of attack. One may ask to have a will set aside by filing a petition in the probate proceedings within one year from the executor‘s second publication of notice of admission of the will to probate (
I find it significant that only in
Elsewhere in Part 5 of the Probate Code, and specifically in
If what was done here is “bringing an action” to contest a will, then I concede the majority is right. However, all the provisions of Part 5 make such a conclusion untenable. Why, for instance, if that is the case, should the legislature talk at all about notice? Rules 48 and 49 would, of course, apply as they do in all such cases.
Yet here there is a special provision as to serving a notice. (
To hold with the majority it must be assumed the legislature used the term “file a petition” interchangeably with “bring an action” and used “notice” interchangeably with “original notice.” I have been able to find no previous occasion when it has done so. “Original notice” has always had a precise meaning under our rules and it has been used in that technical sense; it immediately suggests jurisdiction is involved. Why was its use avoided here?
I cannot believe the legislature inadvertently used “file a petition” to mean “bring an action” nor that “notice” was intended to mean “original notice.” I find this particularly true because
I would hold the statutory procedure here is not the bringing of an action and that the filing of the petition alone is sufficient to confer jurisdiction. To the extent that
I would reverse and remand for trial.
BECKER, J., joins in this dissent.
Beulah M. GLANDON and T. A. Glandon, Appellees, v. Margaret FIALA and Vincent Fiala, Appellants.
No. 52803.
Supreme Court of Iowa.
Feb. 6, 1968.