Certain-Teed Products Corporation v. Luke

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: WILBUR and GARRECHT, Circuit
• Citation: Certain-Teed Products Corporation v. Luke, 74 F.2d 384 (9th Cir. 1934)
• Decision Date: 21 December 1934
• Docket Number: No. 7446.,7446.
• Parties: CERTAIN-TEED PRODUCTS CORPORATION v. LUKE.

74 F.2d 384 (1934)

CERTAIN-TEED PRODUCTS CORPORATION v. LUKE.

No. 7446.

Circuit Court of Appeals, Ninth Circuit.

December 21, 1934.

Charles A. Christin, of San Francisco, Cal., and Chalmers, Fennemore & Nairn and J. Early Craig, all of Phoeniz, Ariz., for appellant.

Alexander B. Baker, Louis B. Whitney, and Lawrence L. Howe, all of Phoenix, Ariz., for appellee.

Before WILBUR and GARRECHT, Circuit Judges.

WILBUR, Circuit Judge.

From the decree of the District Court of the United States for the District of Arizona dismissing its amended bill of complaint in equity appellant brings this appeal.

It appears from the amended bill of complaint that the appellant's claim for $6,342.51 against the estate of W. T. Smith, deceased, based upon decedent's written guaranty, was presented to the administrator with the will annexed of said estate within the time allowed for such presentment; that no action was taken thereon, either allowing or rejecting the same within ten days after presentment, and no action was filed on said claim within three months thereafter.

Sections 3987 and 3989 of the Revised Code of Arizona 1928 provide as follows:

"§ 3987. Allowance or rejection of claim. When a claim is presented to the executor or administrator, he shall indorse thereon his allowance or rejection, with the day and date thereof; if he allows the claim, he shall present it to the judge of the court for his approval, who may hear evidence concerning its validity, and who shall indorse upon it his allowance or rejection and the date thereof. If the executor or administrator or the judge refuse or neglect to indorse such allowance or rejection for ten days after the claim has been presented to him, such refusal or neglect shall be deemed a rejection. If the claim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, it is presented in time, though acted upon by the executor or administrator and by the judge after such time. (§ 1745, R. S. '01; 885, R. S. '13, rev.)"

"§ 3989. Action on rejected claims; claim barred by limitation. When a claim is rejected, either by the executor or administrator or the judge, the holder may bring action thereon against the executor or administrator within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the claim shall be forever barred. No claim shall be allowed by the executor or administrator or by the judge which is barred by the statute of limitations. (§§ 1747-8, R. S. '01; 887-8, R. S. '13, cons. & rev.)"

Appellee contends that under these sections of the Revised Code of Arizona the claim of appellant is barred, and that the administrator has the positive duty of interposing the nonclaim statute as a defense to the tardy suit. Appellant, on the other hand, contends that "a court of equity has power to grant relief and toll the statute of limitations in cases where the claimant is not guilty of culpable negligence in failing to file or bring suit on his claim and where the due administration of the estate will not be delayed by the court's action." Appellant claims to be free from culpable negligence in failing to bring suit on its claim within the three months' period because of its reliance upon statements made in letters written to it and to its attorneys by the attorneys for the appellee. These letters are attached as exhibits to the amended bill of complaint, and the statement therein most strongly relied on by appellant is as follows: "We may say in this regard that our probate law and procedure is almost identical with that of California, and any procedure followed in California in such regard usually applies in this state." In this same letter appellant was advised by appellee's attorneys to turn the matter over to its attorneys which it did. Also appellant contends that in subsequent letters from appellee's attorneys it was led to believe that it would be notified by the administrators or their attorneys if and when the claim was allowed or rejected. It is...