Burke v. Unger

• Decision Date: 13 February 1923
• Docket Number: Case Number: 10753
• Parties: BURKE v. UNGER, Adm'r.
• Court: Oklahoma Supreme Court

1923 OK 89

212 P. 993

88 Okla. 226

BURKE v. UNGER, Adm'r.

Case Number: 10753

Supreme Court of Oklahoma

Decided: February 13, 1923

Syllabus

¶0 1. Executors and Administrators -- Presentation of Claim.

Section 6339, Rev. Laws 1910, provides that every claim which is due when presented to the administrator, must be supported by the affidavit of the claimant or some one in his behalf, that the amount is due, that no payments have been made which are not credited, and that there are no offsets, to the knowledge of the claimant or affiant; and further provides that "when the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by claimant." Held, that where an affidavit was made by an attorney and he gave no reason why it was not made by the claimant, the claim having been rejected, an action could not be maintained thereon and a petition based on such rejected claim did not state a cause of action.

2. Limitation of Actions--Petition Fatally Defective.

Where the petition states no cause of action whatever, the filing thereof will not arrest the running of the statute of limitations.

3. Same.

Where an action was brought against an executrix on a claim, the affidavit supporting which was fatally defective, and because thereof the plaintiff dismissed his action without prejudice, presented another claim to the executrix, which was rejected, and brought suit thereon, and where more than seven years had elapsed between the maturity of the notes constituting the claim and the filing of the second action, held, that the statute of limitations barred a recovery, and that the new action did not come within the saving provisions of section 4662, Rev. Laws 1910.

Error from District Court, Creek County; Lucien B. Wright, Judge.

Action by James A. Burke against Ernest R. Unger, Administrator of Estate of J. P. Soliss, deceased, to recover on promissory notes. Judgment for defendant, and plaintiff appeals. Affirmed.

Smith & Walker, for plaintiff in error.

Burke & Swan, for defendant in error.

NICHOLSON, J.

¶1 This was an action by the plaintiff in error, as plaintiff, against the defendant in error, as defendant, to recover upon a claim against the estate of John P. Soliss, deceased, of which the defendant is administrator. To the petition the defendant interposed a demurrer on the ground that said petition shows on its face that the notes made the basis of plaintiff's cause of action are barred by the statute of limitations. This demurrer was by the court sustained, the plaintiff elected to stand upon his petition, and from the judgment sustaining said demurrer and dismissing the cause has appealed.

¶2 The allegations of the petition, which it is necessary to notice, briefly summarized, are that the Sapulpa & Interurban Railway Company, a corporation, B. C. Burnett, B. B. Burnett, Ed C. Reynolds, F. W. Turner, H. H. McFann, and J. P. Soliss made, executed and delivered to P. J. McNerney and M. C. Burke two promissory notes, one for the sum of $ 1,012, bearing date July 1, 1910, and maturing one year after date, and one for the sum of $ 1,721.30, bearing date October 1, 1910, and maturing one year after date; both of said notes bearing interest at the rate of ten per cent. per annum from date until paid; that both of said notes remained due and unpaid; that said J. P. Soliss died testate on April 5, 1912, and Mary Soliss was duly appointed and duly qualified as executrix of his will; that on September 9, 1912, said two notes were presented to said executrix in the form of a creditor's claim, and said claim was by her disallowed; that on December 7, 1912, said McNerney and Burke commenced an action in the district court of Creek county against the Sapulpa and Interurban Railway, B. C. Burnett, B. B. Burnett, Ed C. Reynolds, F. W. Turner, H. H. McFann, and Mary Soliss, executrix of the will of J. P. Soliss, deceased, to recover the amounts due on said notes; that said action was prosecuted to judgment against all of the defendants named, except Ed C. Reynolds and Mary Soliss, executrix, and that said cause was continued as to them; that thereafter, and on May 22, 1914, said McNerney and Burke assigned all their interest in said judgment and the notes and claim to the plaintiff; that on the 12th day of February, 1919, said cause came on for trial as between the plaintiff herein and the defendant, as successor of Mary Soliss, executrix; that plaintiff offered in evidence the creditor's claim composed of said two notes, presented to and disallowed by said executrix, and that the defendant objected to the introduction thereof on the ground that the verification of said claim was made by R. B. Thompson, one of the attorneys for claimant, and no reason was given in the verification why the claim was verified by Thompson instead of one of the claimants; that the court sustained said objection, denied plaintiff leave to amend the verification so as to show that the claimants were absent from Creek county when said verification was made, overruled plaintiff's motion for a continuance of said cause in order that claimants might present said claim to the defendant upon a sufficient verification, and thereupon, because of the technical defects in the verification of said claim plaintiff moved and was granted a nonsuit of said action without prejudice to another action.

¶3 It was further alleged that said action was commenced in due time and that plaintiff failed in said action otherwise than upon the merits, and has commenced this new action within one year from the failure thereof. It was further alleged that administration of the estate of J. P....