174 Iowa 155 | Iowa | 1916
The issues, as stated by appellant, were whether any contract or agreement had been made, as alleged in the claim, whereby claimant was to receive the farm of the deceased, in consideration for keeping him and caring for him; and whether claimant received large sums of money .from deceased, as claimed by the administrator. As stated, there was a jury trial, and the issues were decided in favor of the claimant.
“And now, on this 14th day of February, 1914, the same being the 12th day of the February Term of this court, in this cause it is ordered by the court that the claimant, Rebecca Ann Thompson, bring on her claim before this court at the April Term, 1914, for adjudication, or the same shall be disallowed.
“It is further ordered that the clerk of’ this court shall send a certified copy of this order to claimant at her last known post-office address, Newton, Kansas.”
It is said by appellant that the statute, Sec. 3338, Code, 1897, provides the manner in which a claim against an estate shall be brought on for hearing. But that has reference to
The order made on February 14th was broader than it needed to be. Doubtless the only purpose of the .court in ihaking the order was that the cause then pending, should be brought on for hearing. The plaintiff., did file with- the clerk, within the proper time, a trial notice -that .the cause would be brought on for hearing at the April Term. The rule and statute do not require that such notice shall be served on opposing counsel. Such a notice was not. served. .But the cause was brought on for trial at the April Term and was tried at that term, the defendant appearing and contesting the claim. Conceding that the order before referred to was not technically and strictly complied with, we are unable to see how defendant was in any manner prejudiced, and we think the trial court had some discretion in the matter. If the order of February 14th was too broad, the court could have modified it, doubtless, at a subsequent time. This was not done, but the ruling of the court in overruling defendant’s motion to dismiss or disallow the claim at least had that effect. It should have been stated that the order of February 14th was ex parte. .The deceased' died July 10, 1.913, and an administrator was appointed September 18, 1913. The claim was filed November 7th of the same year. At that time, the time for filing claims would not expire for.seven months thereafter. Plaintiff was nearly 80 years of age, and lived at New- ■ ton, Kansas. In our opinion, the ruling of the district court at this point was just and right, even though the prior order had not been technically complied with.
The court did not err in rejecting evidence offered by defendant as to declarations of deceased in his own favor at other times than those inquired about by the claimant.
Cases are cited by appellant, holding that the evidence must be clear, satisfactory and convincing. As stated, this is not a case to set aside a deed or for specific performance, and we-think a preponderance of the evidence is all that is required in a case of this kind. The action was to establish a claim against the estate. Mosher v. Goodale, 129 Iowa 719; Jamison v. Jamison, 113 Iowa 720; McAnnulty v. Seick, 59
.The defendant has had a fair trial, and the judgment is, therefore, — Affirmed.