Bell v. Union & Planters' Bank & Trust Co.

• Decision Date: 20 October 1930
• Docket Number: 28854
• Citation: 130 So. 486,158 Miss. 486
• Parties: BELL v. UNION & PLANTERS' BANK & TRUST CO
• Court: Mississippi Supreme Court

130 So. 486

158 Miss. 486

BELL v. UNION & PLANTERS' BANK & TRUST CO

No. 28854

Supreme Court of Mississippi

October 20, 1930

Division B

1. EXECUTORS AND ADMINISTRATORS. Statute making filing proof of publication of notice to creditors unnecessary to set statute of limitation running did not apply to estate being administered (Laws 1928, chapter 69).

Laws 1928, chapter 69, amending Code 1906, section 2103, as amended by Laws 1920, chapter 302, provides that filing of proof of publication shall not be necessary to set statute of limitations to running, but proof of publication shall be filed with the clerk of court any time before decree of final discharge shall be rendered, and that time for filing proof of publication shall not be limited to six months' period in which creditors may probate claims.

2 STATUTES.

Statutes are construed to have prospective operation, unless contrary intention is manifested by clearest expression.

3. CONSTITUTIONAL LAW. Limitation of actions.

Statute of limitations, barring debt without giving reasonable time within which right may be preserved, violates contract and due process clauses (Constitution U.S., article 1, section 10, clause 1, and Amendment 14).

4. EXECUTORS AND ADMINISTRATORS.

Where notice given to creditors is insufficient to set six months' statute in motion, creditors may amend probate of claims at any time before estate is closed without court's leave (Hemingway's Code 1927, section 1851).

5. EXECUTORS AND ADMINISTRATORS.

Statute requiring court order authorizing amendment of affidavits to probated claims applies to amendments after expiration of six months' period (Hemingway's Code 1927, section 1851).

HON. J L. WILLIAMS, Chancellor.

APPEAL from chancery court of Washington county, HON. J.L. WILLIAMS, Chancellor.

Suit by the Union & Planters' Bank & Trust Company against Carrie Bell, executrix of the will of James E. Bell, deceased, to have probated claim established and allowed. From a decree for complainant, defendant appeals. Affirmed.

Affirmed.

J. M. Stevens, of Jackson, Wasson & Wasson, of Greenville, and Wells, Jones, Wells & Lipscomb, of Jackson, for appellant.

A retrospective statute curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden. If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law; it is equally competent to make the same immaterial by a subsequent law.

2 Cooley on Constitutional Limitations, 771, 773, 787; Anderson v. Wilkins, 142 N.C. 154, 9 L. R. A. (N. S.) 1145; 6 R. C. L. 310-311; Gibson v. Hibbard, 13 Mich. 214; Harris v. Rutledge, 19 Iowa 387; State v. Norwood, 12 Md. 195; Vaughn v. Swayzie, 56 Miss. 704; Davis & McMillan v. Industrial Accident Commission, 246 P. 1046, 46 A. L. R. 1095, 17 R. C. L. 680; Ann. 46 A. L. R. 1101.

Chapter 69 of the Laws of 1928 clearly applied to pending estates. A statute in regard to remedies and procedure will be construed to apply to pending proceedings whenever the language used clearly indicates that such construction was intended by the legislature; and so whenever the act is purely remedial in character, so that its application to pending proceedings will not work hardship or injustice, but, on the other hand, will the better protect and secure the rights of parties.

36 Cyc. 1216; Green v. Anderson & Hilzheim, 39 Miss. 359; Excelsior Mfg. Co. v. Keyser, 62 Miss. 135; Harper v. Tapley, 35 Miss. 506; Sleeth v. Murphy, Morr. (Iowa), 321, 41 Am. Dec. 232; Watson et al. v. Mercer, 8 Peters 89, 8 Law Ed. 876.

Appellee made its second probate on February 10, 1926, after the process had been returned and filed in the cause. This probate was made without any order of court allowing it and there was no statute in existence so allowing for chapter 157, Laws of 1926 did not take effect until March 10, 1926. This second probate was not a correction of the affidavit provided for in chapter 157, Laws of 1926, but was an entirely new probate, which probated the original note instead of copies as had been done in the first instance.

Wilson, Gates & Armstrong and Julian C. Wilson, all of Memphis, Tenn., for appellee.

A statute will not have a retroactive construction unless it is manifested by the clearest and most positive expression, and such construction should be placed upon the statute as to preserve if possible its constitutionality.

Richards v. City Lumber Co., 101 Miss. 678; Power v. Calvert Mortgage Co., 112 Miss. 319; Bramlett v. Wetlin, 71 Miss. 902; Garrett v. Beaumont, 24 Miss. 377; Roberson v. Miller, 144 Miss. 622.

If the Act of 1928 should be held enough retroactive to apply to this case, it would be unconstitutional. Any effort to so apply it would impair the obligation of the contract made by Bell when he promised to pay the debt and would violate the constitutions of the state of Mississippi and of the United States in declaring and ordaining that no state should pass any law which would impair the obligation of a contract.

Article III, sec. 16, Constitution of Mississippi; art. 1, sec. 10 of the Constitution of the United States.

It would also by an act of legislation take the property of the Union & Planters Bank without due process of law and thus violate article III, section 14 of the Constitution of the state of Mississippi and would so violate the Fourteenth Amendment to the Constitution of the United States.

Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365; Koshhonong v. Burton, 104 U.S. 668, 26 L.Ed. 886; Chapman v. Douglas Co. Com., 107 U.S. 348, 27 L.Ed. 378; Wilson v. Iseminger, 185 U.S. 54, 46 L.Ed. 804; Ochoa v. Hernandez, 230 U.S. 139, 57 L.Ed. 1427; Atchafalaya Land Co. v. Williams Cypress Co., 258 U.S. 190, 66 L.Ed. 559.

A statute of limitations which attempts to bar a debt without giving some time within which the right is preserved and a remedy given for the enforcement of the debt is unconstitutional under the laws of the state of Mississippi.

Davis v. Minor, 1 Howard 183; Brown v. Wilcox, 14 S. & M. 127; Wilkinson v. Barringer, 23 Miss. 319; Benson v. Stewart, 30 Miss. 49; Morgan v. Hazlehurst Lodge, 53 Miss. 665.

Argued orally by J. M. Stevens, for appellant, and by Julian C. Wilson, for appellee.

OPINION

Anderson, J.

Appellee filed its bill against appellant, executrix of the will of James E. Bell, deceased, seeking to have its probated claim of thirty odd thousand dollars established and allowed against the estate of said decedent. The cause was tried on bill, answer, and proofs, resulting in a decree in appellee's favor. From that decree appellant prosecutes this appeal.

This is the second appearance of this cause in this court. The first appeal was from a decree sustaining appellant's demurrer to appellee's bill.

Appellee had failed to have its claim registered, probated, and allowed within six months after the first publication of notice to creditors by appellant; but appellant had failed to file proof of publication of such notice with the clerk within that period.

Appellant claimed that the failure of appellee to probate its claim within the six months' period resulted in its bar. The chancery court so held. The decree of the chancellor was reversed without written opinion upon the authority of Jennings v. Lowery & Berry, 147 Miss. 673, 112 So. 692, in which the court held that the six months' statute did not begin to run unless the proof of publication to creditors had been filed with the clerk within that period. The cause was remanded to the chancery court. After its reversal by the Supreme Court, chapter 69 of the Laws of 1928 was passed; that act amended section 2103 of the Code of 1906, as amended by chapter 302, Laws of 1920, by adding the following paragraph:

"The filing of proof of publication as provided in this section shall not be necessary to set the statute of limitation to running, but proof of publication shall be filed with the clerk of the court in which the cause is pending at any time before...