Beach v. Bell

• Decision Date: 21 November 1894
• Docket Number: 16,854
• Citation: 38 N.E. 819,139 Ind. 167
• Parties: Beach et al. v. Bell et al
• Court: Indiana Supreme Court

38 N.E. 819

139 Ind. 167

Beach et al. v. Bell et al

No. 16,854

Supreme Court of Indiana

November 21, 1894

From the Vigo Superior Court.

Judgment affirmed.

B. V Marshall, J. Jump, J. E. Lamb and J. C. Davis, for appellant.

R. B Stimson, S. C. Stimson, A. M. Higgins and F. A. McNutt, for appellees.

OPINION

Hackney, J.

In 1882 a judgment was obtained in the lower court against one Rogers, as principal, and the appellees, or those whom they represent, and others, including Ebenezer C. Edmunds, as sureties. In 1885 the appellees paid said judgment upon execution, and the sums paid by them severally were entered as credits upon the docket of said judgment. In 1890 said Edmunds died intestate at the county of Vigo seized of certain real estate in said county, and upon administration said real estate was sold to the appellant, Harriet G. Beach, by order of court and for the payment of the debts of the estate of said Edmunds. The appellees were not parties to the proceedings for the sale of said real estate, and they filed no claims against said estate for contribution, but relying upon a supposed lien upon said real estate, in their behalf, for the sum which said Edmunds should have contributed to the payment of said judgment, the appellees instituted this suit, after the settlement of the estate of said Edmunds, and claimed a lien upon said real estate for the sum claimed, as a contribution from Edmunds.

In the lower court a demurrer to the complaint was overruled, and the appellants declining to plead further there was a finding and decree in favor of the appellees. In this court the only error assigned is in said ruling on the complaint.

The appellants contend that the failure of the appellees to file their claim against the estate of Edmunds resulted in a loss of all remedy, and they cite, as supporting them, sections 2465, 2466, 2467, 2468 and 2469, R. S. 1894 (Elliott's Supp. 385; R. S. 1881, sections 2311, 2312, 2313 and 2314). These sections forbid that actions may be brought by complaint and summons against an estate, and require that a succinct statement of any claim shall be verified and filed, and "if the claim be secured by a lien * * * such lien shall be particularly set forth in such statement, and a reference given" to the record of the lien; "if not filed at least thirty days before final settlement of the estate, it shall be barred." If the claim is upon any joint, or joint and several, contract, or upon any joint judgment founded thereon, the same may be enforced against the estate only by filing the claim in the manner above indicated, and every such claim shall, as to such estate, be deemed joint and several. If the decedent is a surety in any such contract, or in a judgment thereon, the estate shall not be liable unless it be shown that the principal is a nonresident or is insolvent. And if the decedent is a co-surety in any such contract or judgment, the estate shall only be liable for the proportional part of the debt according to the number of solvent resident sureties.

If these provisions are construed to require any such claim as may be secured by lien to be filed, and to participate in the personal assets of the estate, or that not only the right to participate in such assets is barred, but that the lien also is lost, we observe no escape from the...