Bankston v. Albert Coopwood
| Court | United States State Supreme Court of Mississippi |
| Writing for the Court | ANDERSON, J. |
| Citation | 99 Miss. 511,55 So. 48 |
| Parties | L. L. BANKSTON v. ALBERT COOPWOOD, EXECUTOR, ESTATE OF T. D. COOPWOOD, DECEASED |
| Decision Date | 15 May 1911 |
55 So. 48
99 Miss. 511
L. L. BANKSTON
v.
ALBERT COOPWOOD, EXECUTOR, ESTATE OF T. D. COOPWOOD, DECEASED
Supreme Court of Mississippi
May 15, 1911
March, 1911
APPEAL from the circuit court of Tunica county, HON. M. E. DENTON, Chancellor.
Proceedings to establish by L. L. Bankston, a claim against the estate of T. D. Coopwood, deceased. From a judgment in favor of Albert Coopwood, executor, claimant appeals.
The facts are fuly stated in the opinion of the court.
Reversed and remanded.
W. L. Bankston, for appellant.
The single question presented by this appeal is whether the omission of Dr. L. L. Bankston to sign the account would invalidate and preclude recovery of the debt. There was no contest of the justice of the claim. made by the representative of the estate, nor by any distributee, heir or creditor, and it is proved as provided by Code, sec. 2108. The clerk approved, allowed and registered the claim.
We submit that the claim was properly presented to the clerk in an itemized account, signed by the creditor, and sworn to by the creditor in strict compliance with Code, sec. 2106. The affidavit is a part of the probated account and the signing and swearing to same by the creditor is signing and swearing to the account as contemplated by last named section. This statute does not say and certainly does not mean that an account has to be signed. It says, "if there be no written evidence thereof, an itemized account or a statement of the claim is writing, signed by the creditor, and make affidavit, to be attached thereto." So it is very clear that the legislature said and meant to say that the statement should be signed, and not the account, but that the prescribed affidavit signed and sworn to would be sufficient.
It was agreed in the court below by appellee's attorney that if Dr. L. L. Bankston had written his account in his own hand writing instead of using a printed bill head thus writing his name in the caption of the account that then he would have complied with the statute. This construction would render the law a perfect farce, and it would be unreasonable, unjust and exceedingly technical, and we cannot believe that this statute will be given such hair splitting technical construction thus defeating honest, just and undisputed claims.
We submit that the order of the court disallowing this claim should be reversed.
J. T. Lowe, for appellee.
We insist that the learned chancellor below was correct in his holding in this cause, in which he followed the...
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Rice Stix Dry Goods Co. v. Monsour, 32731
...1085; 59 C. J. 967, sec. 573; Ascher & Baxter v. Edward Moyse & Co., 57 So. 299; Cheairs v. Cheairs, 33 So. 414; Bankston v. Coopwood, 55 So. 48. Why shouldn't a statute permitting the amendment of the affidavit attached to the claim be construed to necessarily permit the amending of the cl......
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Merchants & Manufacturers Bank of Ellisville v. Fox, 30596
...to pay the claim. A substantial and not a literal compliance with the statute is required. Bankston v. Coopwood, 96 Miss. 511, 55 So. 48. To hold the certificate here complained of invalid would be to sacrifice substance to form, in a case wherein it is manifest that the statute had in all ......
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Fidelity Mut. Life Ins. Co. v. Goldstein, 33921
...stated in each of the certificates of allowance as well as in the statutory affidavit which accomapnied each claim. Bankston v. Coopwood, 99 Miss. 511, 55 So. 48. There is nothing in the statute with reference to claims based upon written evidences of indebtedness which requires that the cl......
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Poyner v. Gilmore, 31537
...and that a date was written once instead of twice, makes the probate of the claim invalid. Such is not the law. Bankston v. Coopwood, 99 Miss. 511, 55 So. 48. A substantial, and not a literal, compliance with the statute is required. Walker v. Nelson, 87 Miss. 268. The appellees have argued......
-
Rice Stix Dry Goods Co. v. Monsour, 32731
...1085; 59 C. J. 967, sec. 573; Ascher & Baxter v. Edward Moyse & Co., 57 So. 299; Cheairs v. Cheairs, 33 So. 414; Bankston v. Coopwood, 55 So. 48. Why shouldn't a statute permitting the amendment of the affidavit attached to the claim be construed to necessarily permit the amending of the cl......
-
Merchants & Manufacturers Bank of Ellisville v. Fox, 30596
...to pay the claim. A substantial and not a literal compliance with the statute is required. Bankston v. Coopwood, 96 Miss. 511, 55 So. 48. To hold the certificate here complained of invalid would be to sacrifice substance to form, in a case wherein it is manifest that the statute had in all ......
-
Fidelity Mut. Life Ins. Co. v. Goldstein, 33921
...stated in each of the certificates of allowance as well as in the statutory affidavit which accomapnied each claim. Bankston v. Coopwood, 99 Miss. 511, 55 So. 48. There is nothing in the statute with reference to claims based upon written evidences of indebtedness which requires that the cl......
-
Poyner v. Gilmore, 31537
...and that a date was written once instead of twice, makes the probate of the claim invalid. Such is not the law. Bankston v. Coopwood, 99 Miss. 511, 55 So. 48. A substantial, and not a literal, compliance with the statute is required. Walker v. Nelson, 87 Miss. 268. The appellees have argued......