Delfelder v. Farmers' State Bank of Riverton

• Decision Date: 17 July 1928
• Docket Number: 1439
• Citation: 269 P. 418,38 Wyo. 481
• Parties: DELFELDER v. FARMERS' STATE BANK OF RIVERTON, ET AL. [*]
• Court: Wyoming Supreme Court

269 P. 418

38 Wyo. 481

DELFELDER v. FARMERS' STATE BANK OF RIVERTON, ET AL. ^[*]

No. 1439

Supreme Court of Wyoming

July 17, 1928

Rehearing Denied October 16, 1928, Reported at: 38 Wyo. 481 at 503.

ERROR to District Court, Fremont County; VOLNEY J. TIDBALL, Judge.

Action by the Farmers' State Bank of Riverton against Evelyn M Delfelder, as executrix (of the last will and testament of Jacob A. Delfelder, deceased) of the estate of Jacob A Delfelder, deceased. From a judgment in favor of plaintiff and against the executrix, the executrix brings error.

Reversed and Remanded.

E. E. Enterline and E. Paul Bachellor, for plaintiff in error.

No pleading sufficient to support the judgment against plaintiff in error was filed and the judgment may be reviewed here, Nichols v. Comm'rs., 13 Wyo. 1; Irrigation Co. v. Ditch Co., 21 Wyo. 204; Lumber Co. v. Producers Co., (Wyo.) 249 P. 790; 5653 C. S.; 6887-6897 C. S.; O'Keefe v. Foster, 5 Wyo. 343; State v. Evans, 255 P. 1035. Claims must be presented, 1362 C. S.; Houtz v. Board, 11 Wyo. 152; Falkner v. Hendey, (Calif.) 40 P. 21; Thomas v. Fursman, (Calif.) 178 P. 870; Crawford v. Meadows, (Calif.) 203 P. 428; Nesbit v. McDonald, (Calif.) 263 P. 1007. The judgment should be reversed and the action ordered dismissed.

O. N. Gibson and A. C. Allen, for The Farmers State Bank of Riverton; John Dillon, for W. J. McLaughlin; F. Chatterton for Riverton Construction Company; and Kinkead, Ellery & Henderson for N. G. Petrie and M. F. Brothers, defendants in error.

The record discloses a substantial compliance with the statute relating to presentation of claims, 6887-6897 C. S.; 24 C. J. 348, 356, 358, 359, 360; 11 R. C. L. 194-195. The words "presentation" and "exhibit" are distinguishable, 2 Woerner Adm. L. (3rd Ed.) 1290; when both are not required, they are regarded as synonymous, 25 C. J. 186; 31 Cyc. 1167-1168; Willis v. Marks, 45 P. 295; under varying circumstances, delivery of the claim to a third person, has been held a sufficient presentation, Cowgill v. Dinwiddie, (Calif.) 33 P. 439; Rawson v. Knight, 71 Me. 99; Douglas v. Folsom, (Nev.) 33 P. 660; Batchelder v. White, (Vt.) 71 A. 1111. Institution of fraud is generally considered sufficient presentation, 11 R. C. L. 182; Clayton v. Dinwoodey, 93 Pa. 727; the revival of an action abated by defendant's death against the executor or administrator, is equivalent to exhibition of the demand, Rutherford v. Williams, 62 Mo. 252; Eddins v. Craddy, 28 Ark. 500; Bank v. Hotchkiss, (Colo. ) 114 P. 310; Coleman v. Bowles, (Okla.) 181 P. 304; 24 C. J. 321; Glass v. Buzzard, 33 O. C. C. 144, aff'd. 85 O. St. 461; Romero v. Hopewell, (N. M.) 210 P. 231. The doctrine of stare decisis has put the question beyond jurisdictional control in California; while the adoption of a statute from another state carries judicial construction there placed upon it, as a general rule, there are several well-settled exceptions, Coad v. Cowhick, 9 Wyo. 315. No less than eleven states have adopted the provisions of Section 6897 C. S. from California; in at least three, Oklahoma, Utah and Washington, the revival of a pending action has been construed as equivalent to, or as dispensing with, a presentation of the claim upon which it is founded; the objection cannot be first raised on appeal. The petition was attached by demurrer below; it apparently was not ruled upon but waived by pleading over, 31 Cyc. 749; 24 C. J. 748-771, 24 C. J. 371; such waiver constitutes an equitable estoppel, 23 C. J. 1178; 4 C. J. 700, 701, 745; Guerian v. Joyce, 65 P. 974; Phillips v. Rose, 36 O. St. 457. The defect if any was cured by the verdict, 31 Cyc. 763. Sec. 6897 C. S. provides that no recovery shall be had unless proof be made of presentation required; the California construction is controlling; it apparently means that whether or not presentation is alleged, it must be proven, Derby v. Jackson, (Calif.) 26 P. 610; Vermont Co. v. Black, 55 P. 599; whatever objections might have been urged below, have been lost by laches, Henech v. Porter, 10 Cal. 557; Coleman v. Woodworth, 10 Cal. 568; Steen v. Hendy, (Calif.) 40 P. 22; 3 C. J. 781.

Before BLUME, Chief Justice, RINER, Justice, and METZ, District Judge. BLUME, Chief Justice, and RINER, Justice, concur.

OPINION

METZ, District Judge.

In this appeal the plaintiff in error seeks to reverse a judgment rendered by the District Court of Fremont County, Wyoming, whereby the Farmers State Bank of Riverton, Wyoming, recovered judgment against her, in her representative capacity, in the sum of $ 10,971.49 together with costs. From an examination of a certified copy of the papers and the record on appeal it is disclosed that the Farmers State Bank of Riverton filed its petition on January 20th, 1921, in the District Court of Fremont County, Wyoming, against the Riverton Construction Company, N. G. Petrie, W. J. McLaughlin and Jacob A. Delfelder, and on the 18th of February, 1921, it filed its amended petition against the same defendants and Harry B. Henderson, Trustee. An examination of the pleadings discloses that the action was predicated on three promissory notes, two for five thousand dollars each and one for $ 7,487.56. It is alleged that these notes were executed by the Riverton Construction Company, and the payment of the two five thousand dollar notes was guaranteed in writing by Delfelder, McLaughlin and Petrie, and that the other note was endorsed by the said defendants.

The pleadings are extremely voluminous, with a number of amended petitions, amended answers, amended replies, substituted answers, amendments, etc., also the record discloses that one or two parties intervened.

Subsequent to the filing of the petition in this case by the plaintiff bank, J. A. Delfelder, one of the defendants, died, and on June 27th, 1921, a motion for an order of revivor was made by the plaintiff bank, setting up the fact that since the filing of the petition and service of summons the defendant Delfelder had died at Rochester, Minnesota, his last will and testament had been filed in the District Court of Fremont County, Wyoming, and letters testamentary had been issued to Evelyn M. Delfelder, the Executrix named in the will, and asking for a revivor of the action against Evelyn M. Delfelder as the Executrix of the Estate of J. A. Delfelder. The order was duly made by the court reviving the action in favor of the plaintiff bank and against Evelyn M. Delfelder as Executrix of the Estate of J. A. Delfelder, deceased.

On June 28th, 1921, the executrix filed a demurrer to the petition of the plaintiff on the grounds that the petition did not state a cause of action, this demurrer apparently was never presented to the court, as on July 7th, 1921, the defendant Evelyn M. Delfelder, as Executrix, filed a separate answer to the petition of the plaintiff, and set up several defenses to the cause of action plead in the petition in reference to different payments by the Riverton Construction Company and other co-defendants, etc.

It is conceded on both sides in this case that there never was a claim presented to the executrix by the Farmers State Bank, plaintiff in this cause, and it is further conceded that at no place in any of the pleadings, or petition, or amended petition, is there an allegation to the effect that the claim sued upon in this case was ever presented at any time to the executrix.

The cause of action finally went to trial and judgment was entered in favor of the plaintiff, Farmers State Bank, and against Evelyn M. Delfelder, Executrix, for $ 10,947.

It is unnecessary to discuss the evidence in this case. The real points that we are asked to decide are: First. Under the statement of facts as herein set forth is it necessary for the plaintiff to present to the executrix its claim for allowance or rejection as required by Sections 6897, 6895, and 6891 of Wyoming Compiled Statutes 1920? Second. Can the executrix waive the presentation of the claim by failure to plead the non-presentation of the claim to her by the plaintiff bank in her answer? Third. Can the failure of the plaintiff to present its claim to the executrix be raised for the first time in the Supreme Court on appeal?

The following provisions of the Wyoming Compiled Statutes of 1920 are applicable and should be considered in discussing the necessity of pleading the presentation of a claim to the Executrix in her representative capacity:

Sec. 6887. "Within thirty days after letters are granted, the executor or administrator shall publish in some newspaper in the County, and if there be no newspaper published in the county, within some newspaper of general circulation in the state, and publish therein for three weeks a notice that letters testamentary or of administration have been granted to him, stating the date and requiring all persons having claims against the estate to exhibit them for allowance to the executor or administrator within six months after the date of the letters, or they may be precluded from any benefit from such estate, and that if such claims be not exhibited within one year from the date of the said letters, they shall be forever debarred."

(This section was amended in the Session Laws of 1925, Chapter 93, page 97, but such amendment would not be applicable in considering this cause, as the law in force at the time of the trial is what we are to consider.)

Sec. 6889. "All claims arising upon contracts whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; etc., etc.,"

Sec 6890. "Every claim which is due when presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf,...