Willcox v. Jackson , 51 Iowa 296 ( 1879 )

Day, J.

1. adminisTRATOR : time forming claim, — I. It is claimed that the facts alleged in the reply show that the defendant’s claim is barred by the statute of limRations, and that the demurrer to the reply was . _ improperly sustained. The Code, § 2366, provides that executors or administrators, when first appointed, shall publish such notice of their appointment as the court or clerk may direct, which direction shall be indorsed on the letters, when issued. The reply alleges that plaintiff gave due and legal notice of said appointment by publication in a newspaper for two weeks, the publications being on the 24th day of February and the 2d day of March, 1876. In the absence of any averment to the contrary the presumption is that this notice was given in compliance with the requirement of the-order of the court or the clerk, and that notice was complete on the day of the last publication, March 2,1876. The counterclaim was duly verified, and was filed on the 27th day of February, 1877. Section 2421 of the Code provides: “All claims, of the fourth of the above classes, not filed and proved within twelve months of the giving of the notice aforesaid, are forever barred unless the claim is pending in the District or Supreme Court, or unless peculiar circumstances entitle the-claimant to equitable relief.” The claim in question was filed three days before the expiration of a year from the giving of notice by the administratrix. It had not been proved in October, when the plaintiff filed her amended reply.

The appellee relies upon Wile v. Wright, 32 Iowa, 451. It is apparent from the whole opinion that that decision was. based upon the ground that the peculiar circumstances of the case entitled the claimant to equitable relief, thus bringing the case within the exception named in the statute. The. decision in the court below was placed expressly upon that ground, arid that decision is affirmed. The opinion says:. “The claim was filed at such time as furnished reasonable ground for believing that it might be proved at the May Term of the Circuit Couri,, and before the expiration of the time limited in the statute. A mistake in the notice rendered a continuance to the August Term necessary.” In that case the claim was filed two months before the time limited in the statute expired, and it failed to be proved because of failure to get proper notice. In this case the claim was not filed until within three days of the expiration of the time allowed. No excuse whatever is offered for the delay. No equitable circumstances entitling the claimant to equitable relief are shown. The reply alleges that no peculiar circumstances entitling the claimant to equitable relief exist, and yet this reply is held bad on demurrer. To sustain this holding would completely nullify the provision of the statute that- claims must be filed and proved within twelve months of the giving of notice, unless peculiar circumstances entitle the claimant to equitable relief.

In Noble v. Morrey, 19 Iowa, 509, commenting upon the provisions of the Revision, the court say: “It is true that such claims have to be proved, as well as filed, within eighteen months. * * * If a claim of the fourth class should be filed, but, without the claimant’s fault, should not be passed upon within the eighteen months, then we can only suggest that it wou^d seem that the claimant would be entitled to the equitable relief contemplated by the statute.” If the claim in question failed to be passed upon through no fault of the defendant, or there are any other peculiar circumstances entitling the defendant to equitable relief, he should show the existence of those circumstances and bring himself within the exception of the statute. In the absence of any such showing his claim is barred by the express language of the statute, and to hold that he may recover simply from the fact of filing his claim within twelve months of the giving of notice by the administrator, would be nothing less than a repeal of the statute by judicial construction. The court erred in sustaining the demurrer to the reply.

Reversed.