Altvater v. First Nat. Bank of Central City

• Decision Date: 03 May 1909
• Citation: 103 P. 378,45 Colo. 528
• Parties: ALTVATER v. FIRST NAT. BANK OF CENTRAL CITY.
• Court: Colorado Supreme Court

103 P. 378

45 Colo. 528

ALTVATER v. FIRST NAT. BANK OF CENTRAL CITY.

Supreme Court of Colorado

May 3, 1909

Rehearing Denied July 6, 1909.

Appeal from Gilpin County Court; Flor Ashbaugh, Judge.

Claim by the First National Bank of Central City against Fritz J Altvater, as administrator of the estate of Joseph L Updegraff. From a judgment allowing the claim, the administrator appeals. Reversed.

Chase Withrow and W. E. Withrow, for appellant.

James M. Seright, for appellee.

STEELE C.J.

Some time during the year 1885 the First National Bank of Central City brought suit in the district court against Joseph S Updegraff to recover judgment upon certain promissory notes executed by Updegraff. On July 10, 1885, judgment was pronounced in favor of the bank and against Updegraff in the sum of $2,390.54, but the judgment was not then entered of record. Updegraff died intestate during the month of April 1903, and the plaintiff in error was appointed administrator of his estate on the 16th day of May, 1903. June 29, 1903, was the day fixed by the administrator, through published notice, as the day for the presentation of claims against the estate. April 29, 1904, the claim of the First National Bank was filed against the estate. The claim was based upon a transcript of the judgment docket of the district court showing a judgment in favor of the bank and against Updegraff rendered July 10, 1885, in the sum of $2,390.54. To the amount as shown by this transcript was added $4,255.16 as interest upon the judgment, less certain credits given upon the judgment amounting to the sum of $140; the amount claimed to be due at the time of filing being $6,505.70. No notice of the filing of this claim was given the administrator. An order of the county court entered of record November 8, 1905, recites that the claim of the bank for the sum of $6,505.70 is disallowed, and that the clerk is directed to notify the claimant of the action of the administrator. On April 24, 1906, notice was served upon the administrator that it was the intention of the bank to present its claim for allowance on May 5, 1906. The hearing on the claim occurred on May 6, 1906, and following days, and at the conclusion of the claimant's testimony the administrator moved for a nonsuit, and on May 15th the claim was allowed in the sum of $7,214 as a claim of the fourth class. From the judgment the administrator appeals.

On the hearing, the claimant offered in evidence the claim filed in 1904, also a transcript of the proceedings in the district court in a suit begun in 1885 that culminated in a judgment being entered against Joseph S. Updegraff and in favor of the First National Bank of Central City in the sum of $2,390.54 on the 17th of January, 1906, nunc pro tunc for and as of July 10, 1885. The administrator objected to the introduction of the claim and to the transcript of the proceedings of the district court, but his objections were overruled. Section 4787, Mills' Ann. St., provides that: 'The manner of exhibiting claims against estates shall be by filing in the county court the account, or instrument of writing, or an exemplification of the record whereon such claim is founded. Formal pleadings shall in no case be required; but the issue shall be formed, heard and determined in the same manner as in actions before justices of the...