Detroit Auto. Scale Co. v. Torgeson

• Decision Date: 01 February 1916
• Docket Number: 3789
• Citation: 36 S.D. 564,156 N.W. 86
• Parties: DETROIT AUTOMATIC SCALE COMPANY, Plaintiff and appellant, v. TRINA TORGESON, Administratrix of the Estate of T. L. Torgeson, deceased, Defendant and respondent.
• Court: South Dakota Supreme Court

36 S.D. 564, 156 N.W. 86 (1916)

DETROIT AUTOMATIC SCALE COMPANY,

Plaintiff and appellant,

v. TRINA TORGESON, Administratrix of the Estate of T. L. Torgeson, deceased,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Union County, SD

Hon. Joseph W. Jones, Judge

#3789--Affirmed

Gantt & Ellis

Attorneys for Appellant.

Brown & Brown

Attorneys for Respondent.

Opinion filed February 1, 1916

SMITH, J.

Appeal from the circuit court of Union county. T. L. Torgeson died on October 20, 1912. Trina Torgeson was appointed administratrix of his estate and duly qualified and entered upon the discharge of her duties. A claim against the estate was presented to her for allowance as administratrix, which was rejected. Such claim was supported by an affidavit in the following language:

"State of South Dakota, County of Lincoln.

"W. E. Gantt, agent for the Stimpson Computing Scale Co., whose foregoing claim is herewith presented to the administratrix of said deceased, being duly sworn says that the amount thereof, to-wit, the sum of one hundred fifteen dollars ($115.00) is justly due said claimants, that no payments have been made thereon, which are not credited, and that there are no offsets to the same, to the knowledge of the said W. E. Gantt."

Plaintiff brings this action to recover the amount alleged to be due on this claim. Defendant demurred to the complaint on the sole ground that the affidavit was insufficient to support the claim, in that it did not comply with section 171 of the Probate Code. The demurrer was sustained by the trial court. Plaintiff elected to stand upon the complaint, and final judgment was entered dismissing the action. This appeal is to review the order sustaining the demurrer.

Section 171, Probate Code, so far as material here, is as follows:

"Every claim which is due when presented to the administrator must be supported by the affidavit of the claimant or some one on his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the claimant or affiant. ... 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 make by the claimant. ..."

It is appellant's contention that this affidavit substantially complies with this statute. In this we think appellant is in error. Appellant relies chiefly on the case of Patrick v. Austin, 20 N.D. 261, 127 N.W. 108. We do not regard that case as controlling. The question here presented was but casually considered in that case. The court merely says:

"The claimant being a corporation, the verification would necessarily have to be made by an officer; in the case at bar it was made by the treasurer."

The court apparently overlooked the fact that the statements referred to as being in the affidavit, were mere recitals, and that the affidavit itself was signed and sworn to as, "F. A. Patrick & Co. by Geo. C. Stone." Further comment is unnecessary. Appellant here contends that the affidavit--

"Sets forth the fact that the claimant is a corporation, and the party making it is its agent. That the corporation being incapable of acting except by an agent, such affidavit is a substantial compliance with the statute."

It will be observed that it does not appear even by way of recital in the affidavit in this case (as it did in the Patrick case) that the claimant is a corporation. The claimant is described in the recitals as the "Stimpson Computing Scale Company," which might be the name of a corporation, a partnership, or of a person transacting business under a fictitious title. This court cannot assume that the claimant is a corporation, and can act only by agent. The affidavit therefore is totally void of any allegation showing why it is not made by the claimant, or showing that affiant is competent to make it.

The case of Maier Packing Co. v. Frey, 5 Cal. App. 80, 89 Pac. 875, is on all fours with this case. The statute (section 1494, Cal. C. Civ. Proc.) is identical with section 171 of our Probate Code. The affidavit was in substantially the same language, and was held insufficient by the trial court as in this case. Affirming this ruling, the court said:

"The affidavit before us does not disclose the capacity or character in which claimant appears; there is no statement in it from which we can conclude that Maier Packing Company is an incorporated company, and in the absence of some averment setting forth such fact, we cannot assume that it is a corporation....