
    Cooley v. Smith, Executor.
    1. Judgment or Supreme Court. A judgment of the Supreme Court cannot he collaterally impeached, on the ground that the court, in the opinion filed in the case, directed that a different judgment be entered.
    2. Executors; statute or limitations. "When an action is commenced in the District. Court, upon a claim against an executor of which such court has jurisdiction, within six months after the publication of the notice of • the appointment of the executor, the judgment, when rendered, should be allowed and paid, as a claim of the third class, notwithstanding the judgment is not filed in the County Court until after the expiration of one year and a half after such publication.
    3. Jurisdiction OP COURTS. The District Court has concurrent jurisdiction with the County Court in the allowance of mere money demands against an estate; and has exclusive jurisdiction when a lien is to be enforced.
    
      4. Executor: leave to sue in District Court, while a mere money demand may be prosecuted in the District Court, only upon leave granted by the County Judge, the failure to obtain such leave must be set up as a defense to the action, and cannot be asserted for the first time against the judgment.
    
      Appeal from Dubuque District Court.
    
    Tuesday, October 11.
    The facts are sufficiently stated in tbe opinion of tbe court.
    
      Austin Adams and F. F. Bissell for tbe appellants.
    
      John Hodgden and J. S. Covel for tbe appellee.
   Cole, J.

Frederick S. Jessup baying died leaving a will, the same was duly proved in the County Court of Dubuque county, and letters of administration were granted to tbe defendants, at tbe November Term, 1856, of said court, and due notice thereof was immediately given. In January, 1857, James Dyer, Jr., brought suit in the District Court of Dubuque county, against the defendants, as executors, claiming that the testator, Jessup, in his lifetime, acting as agent for Dyer, sold certain real estate, and received certain railroad bonds and Iowa Land Company stock, which be retained, and, by false representations as to what be bad received, made settlement with Dyer therefor. The petition offered to return what Dyer had received from Jes-sup, and asked that defendants be ordered to transfer tbe bonds and stock received, if still in their power to do so ; if not, then a judgment for their value in money. Pending tbe suit, Dyer assigned bis claim, and plaintiff became the owner thereof, and was substituted as plaintiff. At the March Term, 1859, a judgment was rendered by the District Court for plaintiff, for the sum of $15,978.99, and the defendants were ordered “ to pay tbe said sum to the said Cooley, within thirty days from the rising-of this court, and, in default of such payment, tbe said Cooley have execution tberefor,” &c. From this judgment, tbe defendants appealed to this court (Dyer v. Executors of Jessup, 11 Iowa, 118); and tbe opinion filed therein at tbe Davenport Term, 1860, after showing tbe amount received by defendants’ testator, and that tbe judgment below was for too much, concludes as follows: “ Computing tbe interest on this sum, from tbe first of December, 1856, to tbe first of December, 1860, when this decree will be entered, we have $15,957.65, for which the clerk is directed to enter up a judgment in behalf of tbe plaintiff for the use of tbe assignee, Cooley, and to tax tbe costs of this court to tbe appellee. Affirmed.” Tbe record of this court, at tbe December Term, 1860, however, shows a judgment of affirmance in tbe usual form, and procedendo awarded, which was duly issued.

On tbe third day of October, 1862, tbe plaintiff commenced this proceeding by filing in tbe office of tbe county judge of Dubuque county, a certified copy of tbe aforesaid j udgment, &c., to be placed in the catalogue of established claims, and in tbe third class, and moved for an order directing tbe executors to pay and satisfy said judgment, &c., “ and supported tbe same by affidavit of non-payment, &c. Tbe defendants, on tbe bearing, appeared and filed their answer, setting up, First, That the judgment was appealed from to tbe Supreme Court, and another judgment ordered to be entered, whereby tbe judgment filed was not in force; Second, That more than eighteen months bad elapsed since their appointment as executors, and due notice thereof given; and, Third, That more than eighteen months bad elapsed since tbe judgment was rendered, and plaintiff’s claim bad not been stated, sworn to and filed. Upon tbe bearing, tbe County Court ordered that tbe claim filed be dismissed, &c., from which plaintiff appealed to tbe District Court, where a like judgment was entered, and tbe plaintiff appeals to this court.

I. That tbe opinion filed in this court directed a different judgment to be entered, from that which was finally rendered, cannot be made available to ^he defendants in this proceeding. The final judgment cannot be thus collaterally impeached, because the opinion shows, or tends to show, that a different one should have been entered, any more than an ordinary judgment of the District Court may be collaterally impeached by showing that the facts upon which it appears to have been based, shows that a different judgment than the one recorded ought to have been rendered in the case.

II. The second ground of defense, is the statute of limitations. The provisions of our statute in relation limitation of claims against an estate, are as follows.

Revision, “§2931 (1359). Claims against the estate must be clearly stated, sworn to and filed. Ten days notice of the hearing, indorsed on a copy of the claim, must be served upon one of the executors, in. the manner required for commencing actions in the District Court.
“§ 2405 (1373). All claims of the fourth of the above classes (all other debts), not filed and proved, within one year and a half 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.”

That the claim in this case was not stated, sworn to and filed within eighteen months after notice of appointment of executors, is conceded by the plaintiff, and that suit was brought thereon in the District Court within six months of such appointment, and was pending therein when the eighteén months expired, and long after, is likewise conceded by defendants, and the only question .under this clause of the answer, is, whether the case is within the statute. Under our statute, the County Court has general, jurisdiction in the administration of estates, but this jurisdiction is not -universal, nor entirely exclusive. For instance, Revision, § 2395 (1368), provides, that “claims for a mere money demand, where no lien is to be enforced, shall not, except with the approbation of the County Court, be prosecuted in the District Court.” The District Court is a court of general jurisdiction, and under this section has concurrent j urisdiction with the County Court, for the allowance of a claim for a mere money demand. See Sterritt v. Robinson, Ex'r, infra. Where a lien is to be enforced, the jurisdiction of the District Court is exclusive. As to all claims to be asserted against the estate, within and through the jursidiction of the County Court, they must be clearly stated, sworn to and filed, within the time provided by statute; notice given and proof made, as provided by section 2391, supra, and 2392. But where a claim must, or may properly be established in the District Court, there can be no necessity for also commencing proceedings upon such claim, in the .County Court, by stating, swearing to, or filing it there. See County of Linn v. Day, 16 Iowa, 158. Such statement, swearing to and filing, is a part of the proceedings for the establishment of the claim in the County Court, and there can be no reason for commencing proceedings in a court or tribunal which possesses no power or jurisdiction to determine it, nor to commence two proceedings for the same cause. This view of the statute finds further confirmation in the provisions of section 2394, “ all claims not established in the District Court, must be submitted to, and passed upon in the County Court.” And section 2405, supra, especially relied upon by defendants, makes the exception of cases pending in the District Court. See, also, section 2415, Woodward v. Laverty, 14 Iowa, 381. We therefore conclude, that where the-claim is sued upon before- the statutory limitation expires, and is properly pending in the District Court, as in this case, that the limitation of the statute does not apply.

Whether the approbation of the County Court was given for the prosecution of the claim originally in the District Court, does not appear. If it was not given, and was necessary, it was tbe duty of the defendants to object to the proceeding in the District Court on that ground.; but, having failed to do so, and having appeared in the case, submitted to the jurisdiction of the court, and defended the claim on its merits, and judgment being rendered thereon, against them, it is too late now to assert such want of jurisdiction in this collateral way. It is probable, however, that the original claim in this case, would come under that class where a “lien is to be enforced,” since the plaintiff seeks by his suit to reach and subject to his claim ■the specific property received by the defendants’ testator.

The original suit having been commenced within six months after the appointment of the executors, in the only court having jurisdiction to grant the entire relief asked for by the plaintiff, and which he was entitled to, by his averments; and the executors having had notice of such .suit and claim within that time, we see no good reason why the plaintiff's claim ought not to. be paid with other third class claims. It is the duty of executors to take notice of claims thus properly prosecuted in the District Court and established there, and to pay them in their class ; and a failure to do so would make them liable, to the same extent as a failure to pay a claim properly established in the County Court.

III. It follows from the view which we have taken of-' the law, as applicable to the second ground of defense, that the claim was properly established in the District Court; and being an established claim, therefore, the statute of limitations relied upon, which refers only to claims not established, can have no application, and cannot constitute a bar.

The judgment of the District Court is reversed and cause remanded there, with instructions to send the same to the County Court, with directions to make an order that tbe executors pay tbe plaintiff’s judgment pro rata with other third class claims against tbe estate, and judgment will be rendered in this court against appellees for costs.

Reversed and remanded.  