Cordingly v. Kennedy

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Cordingly v. Kennedy, 239 F. 645 (8th Cir. 1917)
• Decision Date: 25 January 1917
• Docket Number: 4535.
• Parties: CORDINGLY v. KENNEDY.

239 F. 645

CORDINGLY v. KENNEDY.

No. 4535.

United States Court of Appeals, Eighth Circuit.

January 25, 1917

[Copyrighted Material Omitted]

Charles F. Carnine, of Denver, Colo. (Ponsford & Carnine, of Denver Colo., on the brief), for plaintiff in error.

Edwin H. Park, of Denver, Colo. (Thomas H. Gibson, of Denver Colo., on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and TRIEBER and VAN VALKENBURGH, District Judges.

VAN VALKENBURGH, District Judge.

Defendant in error sues in the capacity of executor of the last will and testament of Harriet U. Kennedy, deceased, who died in Los Angeles county, Cal., in May, 1913, to recover judgment against plaintiff in error for the sum of $5,000, with interest thereon at 6 per cent. per annum from February 20 1913, upon a promissory note dated January 20, 1911, signed by plaintiff in error and payable to the order of the testatrix of defendant in error. To the complaint plaintiff in error filed a demurrer and answer. The demurrer challenged the legal capacity of defendant in error to institute or prosecute the cause of action set forth, for the reason that he is suing in an official capacity as executor under an alleged appointment by the superior court of Los Angeles county, Cal., and as such has failed to comply with the terms and requirements of sections 7152 and 7153 of the Revised Statutes of Colorado of 1908, in that it was not shown by the complaint that as such executor he had filed in the trial court his original appointment, or a copy thereof duly authenticated, as required to make the same receivable in courts of record in the state of Colorado, and, further, in that said complaint failed to show that said defendant in error had filed in said cause a properly authenticated copy of his bond as such executor, with security in double the amount of the value of the property and estate sought to be recovered; that by reason of the premises the complaint did not state facts sufficient to constitute a cause of action. This demurrer was by the court overruled.

By the answer plaintiff in error put in issue all the allegations of the complaint, except that pleading the jurisdictional amount in controversy, and for further defense alleged in substance:

'That on or about January 16, 1911, Harriet U. Kennedy, testatrix of defendant in error, delivered to plaintiff in error $5,000, with instructions that the latter should use said sum to the best of his judgment in a business enterprise engaged in by one Charles T. Kennedy, who is a grandson of defendant in error's testatrix, and who is a son-in-law of plaintiff in error, and that this money was intended as a gift from the said Harriet U. Kennedy to her grandson; that Harriet U. Kennedy's property was derived from the estate of her deceased husband, and that at the time she made this gift she was in fear of controversy or litigation with her two sons, who were the other heirs of said estate, and that by reason of this apprehension she requested the said Charles T. Kennedy to make a formal promissory note to represent the amount of the $5,000 gift, so that she could exhibit the pretended note and thus account for said sum of $5,000 in the event such contemplated controversy should arise; that this note represented no indebtedness whatsoever, and that plaintiff in error signed it upon the express understanding that he should not be called upon to pay it; that it was further understood that the said Charles T. Kennedy should also sign the note, and that, after plaintiff in error had signed it, he delivered it to Charles T. Kennedy, who failed to sign the note, and without authority delivered it to defendant in error's testatrix, and that plaintiff in error did not know until April, 1914, that Charles T. Kennedy had not signed said pretended note; that plaintiff in error expended said sum of $5,000 solely for the benefit of said Charles T. Kennedy, and that the former derived no personal gain or profit therefrom, and received no consideration for signing said note; that defendant in error's testatrix stated that when the estate of her deceased husband was settled, and she would no longer be called upon to account for said $5,000, she would cancel said note; and that, although her husband's estate was settled prior to her death, she failed to cancel and return said pretended note.'

To this answer defendant in error filed a demurrer, which was likewise overruled.

At the trial, to the court sitting as a jury, defendant in error offered in evidence Exhibit A, the promissory note in question; Exhibit B, letters testamentary issued to him by the superior court of Los Angeles county, Cal.; and Exhibit C, the bond of Henry S. Kennedy as executor. Exhibits A and B were admitted without objection, and that interposed to Exhibit C was overruled, and an exception duly saved. It was further agreed that the record might show, without proof, that Harriet U. Kennedy was dead, and died prior to the bringing of this suit. Thereupon defendant in error rested his case.

Plaintiff in error then offered the above-named Charles T. Kennedy as a witness in his behalf. Defendant in error objected to the competency of the witness to testify, on the ground that the case was being prosecuted by the executor of the last will and testament of the payee in the note; that under the allegations of the answer the witness was an interested person, within the meaning of the Colorado statute, and was therefore disqualified. The court reserved its ruling, and the testimony was received subject to the objection. Plaintiff in error was next sworn on his own behalf, but upon objection his testimony was excluded. Of this ruling complaint is not urged in this court. Plaintiff in error offered no further testimony, and the court thereupon, after argument, ruled that the witness Charles T. Kennedy was an incompetent witness, sustained a motion to strike out his testimony already received, and rendered judgment on the note for principal and interest in the sum of $5,646.66, and for costs, 'to which order and judgment, to be entered as aforesaid, and to the entering of said judgment, the defendant, by his counsel, then and there duly excepted.'

The following errors are specified: (1) The court erred in overruling the demurrer to the complaint. (2) The court erred in admitting in evidence Exhibit B, purporting to be an exemplified copy of letters testamentary issued to defendant in error, upon the ground that it does not follow the approved form of such letters testamentary as recognized by the Code of Civil Procedure of California. (3) The court erred in admitting in evidence Exhibit C, purporting to be a copy of the bond of defendant in error as executor of the estate of Harriet U. Kennedy, deceased. (4) The court erred in ruling that Charles Kennedy was not a competent witness to testify in said cause, and in striking out the testimony given by him. (5) The court erred in overruling the motion of plaintiff in error for a new trial. (6) The court erred in rendering judgment in said cause, for the reason that the defendant in error did not, for at least 10 days prior to the rendition of said judgment, or for any other period of time, or at all, give notice of the pendency of said action by publication in the county where said cause was pending, or in any other county within the said district of Colorado.

1. Section 7152, Revised Statutes of Colorado 1908, provides:

'When any executor, administrator, guardian or conservator shall have been appointed such in any other state or territory of the estate of any person not a resident of this state at the time of his death, or at the time of such appointment, in the case of minors and lunatics, such foreign executor, administrator, guardian or conservator, upon filing his original appointment or a copy thereof, duly authenticated, as required to make the same receivable in any court of record in this state, may prosecute and defend any action or proceeding relating thereto, as may be prosecuted and defended by any such official duly appointed by any county court of this state; but no judgment in favor of any such executor, administrator, guardian or conservator, shall be rendered until such executor, administrator, guardian or conservator shall first have given notice of the pendency of such action by publication for at least ten days in some newspaper of general circulation, published in the county where such suit is pending.'

Error is assigned to the action of the trial court in overruling the demurrer, because defendant in error did not incorporate in his complaint a copy of the exemplification of his official bond and letters testamentary. Copies of the documents themselves were set out therein. At the hearing on demurrer it was conceded that defendant in error had filed a copy of his appointment, duly authenticated, as required by law. In this court the same concession is made in the brief of counsel. Was the omission so to state in the complaint fatal on demurrer? We do not think so. Substantial, if not literal, compliance with the statute is shown, and that is sufficient. Even though there had been failure to comply with the strict terms of the statute, the defect could have been cured by filing at any time before hearing. But in this case compliance is admitted. Dodge v. Town of North Hudson (C.C.) 188 F. 489-493; Hodges et al. v. Kimball et al., 34 C.C.A. 103, 91 F. 845.

2. The second specification of error cannot be considered here, because no objection was made at any time to the introduction of Exhibit B, which is an exemplified copy of the letters testamentary; the attention of the trial court was not called to this alleged error, and nothing was preserved for review in this court.

3....