Berkey v. Judd

• Decision Date: 31 March 1881
• Citation: 27 Minn. 475
• Parties: HIRAM BERKEY <I>vs.</I> MARY ANN M. JUDD and others, Executors.
• Court: Minnesota Supreme Court

27 Minn. 475

HIRAM BERKEYvs.

MARY ANN M. JUDD and others, Executors.

Supreme Court of Minnesota.

March 31, 1881.

Appeals by defendants from an order of the district court for Washington county, Crosby, J., presiding, on appeal from an order of the probate court of said county, and from an order of said district court overruling the demurrer of defendants to the complaint of plaintiff in an action therein pending.

The facts are stated in the opinion.

McCluer & Marsh and Bigelow, Flandrau & Clark, for appellants.

H. J. Horn and L. R. Cornman, for respondent.

GILFILLAN, C. J.

In 1865, respondent Berkey commenced an action against George B. Judd and Orange Walker. The cause was referred to and tried by a referee, who, in April, 1871, filed his report directing judgment for the plaintiff and against the defendants for $10,032.10. The defendants made a motion for a new trial, which was denied. From the order denying it an appeal was taken to this court, where the order was affirmed. The cause was remanded to the district court, and judgment there entered upon the report January 7, 1876. After the report, and before the appeal, Judd died, leaving the appellants executors of his will. Commissioners to audit claims against the estate were duly appointed, who duly considered and adjusted all claims presented to them, and filed their report February, 1873, which was accepted. The claim here involved was not presented to them. The executors were not substituted as parties defendant in place of Judd. In January, 1876, a certified transcript of the judgment was filed in the probate court. Walker paid one-half of the judgment, and it was released as to him. There was sufficient property of the estate, after all other claims against it were paid, to pay this claim. In July, 1876, the respondent filed his petition, setting forth the foregoing facts, in the probate court, and asking an order that the executors pay the amount of the judgment remaining after the release as to Walker. That court denied the application, and this respondent took an appeal to the district court, where the decision of the probate court was, in effect, reversed, and the executors ordered to pay the claim. The executors appeal to this court. This respondent also commenced an action against the executors in the district court, the complaint setting forth the facts. To the complaint a demurrer was interposed, and overruled by the court below. From the order overruling it an appeal is brought to this court.

The claim of the respondent was not, under the statute, the proper subject of an action against the executors. The demurrer to the complaint against them ought, therefore, to have been sustained. The question on the other appeal is, ought the claim to have been presented to, and passed on by, the commissioners? If it ought, it is barred because not so presented. The case is that of an action pending at the death of the defendant. We find in the statute two provisions in respect to such actions, (Gen. St. 1878, c. 53, § 16:) "All actions which are pending against a deceased person at the time of his death may, if the cause of action survives, be prosecuted to final judgment; and the executor...