Easley v. Rowe

• Decision Date: 10 March 1919
• Docket Number: 141
• Parties: EASLEY v. ROWE
• Court: Arkansas Supreme Court

210 S.W. 145

138 Ark. 58

EASLEY v. ROWE

No. 141

Supreme Court of Arkansas

March 10, 1919

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

Cause reversed and dismissed.

E. H Vance, Jr., for appellant.

1. The suit should have been brought in the probate court, as the circuit court had no jurisdiction. Kirby's Digest, § 124; 90 Ark. 198.

2. There was no duly authenticated claim against the estate presented prior to the institution of suit in the circuit court. Kirby's Digest, §§ 110, 119; 30 Ark 756; 7 Id. 78; 14 Id. 234; 110 Id 225; 105 Id. 97.

3. The suit was barred by the statute of nonclaim of one year. Kirby's Digest, § 110; Acts 1907, p. 1171; 202 S.W 239.

4. The original suit brought by Ada Rowe and Ella Small before a justice of the peace was against Ella Easley individually and not as administratrix and a nonsuit without prejudice would not arrest the statute of limitations.

5. The notes of C. W. Moore, if delivered as a gift to appellees, their remedy was against C. W. Moore, who owed the debt, and not against Easley's estate. The instructions are against the law and the judgment should be reversed and the case dismissed.

Jabez M. Smith, for appellees.

1. Suits may be brought against an estate either by ordinary action or in the probate court. Either the circuit court or probate court has jurisdiction. The claim was duly authenticated. 7 Ark. 78; 14 Id. 234; 105 Id. 97; 110 Id. 225. The proper affidavit was made. 90 Ark. 340-1; 97 Id. 296; 105 Id. 95.

2. The suit was not barred, as the facts show. Suit was brought before a justice of the peace. Nonsuit was taken and suit brought within one year. Kirby's Digest, § 5083. Nonclaim cannot be availed of because the record shows the letters of administration were dated November 23, 1916, and appellees had the right to rely upon the record and the year had not expired, as appellees were misled by the record. Mistakes for which parties are not liable will not affect their rights. Citations are not necessary, as this is the settled law.

OPINION

HUMPHREYS, J.

On October 15, 1917, appellees instituted suit against appellant, as administratrix of the estate of C. H. Easley, deceased, in the Hot Spring Circuit Court, to recover $ 200 with interest at the rate of eight per cent. per annum from the 7th day of November, 1911, for money which had been collected on notes, belonging to appellees, partly by C. H. Easley, in his lifetime, and partly by appellant, as administratrix of the estate of C. H. Easley, deceased. It was alleged that appellant was appointed administratrix of the estate of C. H. Easley, deceased, on the 23rd day of November, 1916. With the complaint, an affidavit of the justice and nonpayment of the claim was produced, of date September 24, 1917.

Appellant denied that the notes upon which the money had been collected by her husband, C. H. Easley, in his lifetime, and by her, as administratrix of his estate, were the property of appellee; also denied that she was appointed administratrix of the estate of C. H. Easley, deceased, on the 23rd day of November, 1916; and, as an additional defense, pleaded the statute of nonclaim, alleging that letters of administration of the estate of C. H. Easley, deceased, were issued to her on September 26, 1916, and that the suit was not instituted by appellees until October 15, 1917. Appellees filed a reply to the answer of the administratrix, setting up that, after appellant was appointed administratrix, appellees instituted suit against appellant in the court of J. M. Ketchum, a justice of the peace of Henderson township, which was appealed to the circuit court on the 30th day of July, 1917, and nonsuit was taken in said suit without prejudice. Appellant filed an answer to appellees' reply, denying that there had been a suit instituted after her appointment as administratrix before J. M. Ketchum, a justice of the peace, against her as administratrix of the estate of C. H. Easley, deceased.

The cause was submitted to a jury on the pleadings, evidence and instructions of the court. The jury returned a verdict in favor of plaintiffs for $ 75 each, and a judgment was rendered in accordance therewith. Proper steps were had and done and an appeal has been prosecuted to this court from said judgment.

Appellant first contends that this cause of action was exclusively cognizable in the probate court of Hot Spring County and that it was error for the circuit court to entertain jurisdiction of the action. Before the adoption of the Constitution of 1874, courts of law had jurisdiction to entertain suits for claims against the estate of deceased persons if an affidavit of the justice and non-payment of the claim, made before the commencement of the suit, was produced. Ryan et al. use etc. v. Lemon, Admr., 7 Ark. 78; Beirne & Burnside v. Imboden et al. Admr., 14 Ark. 237; Alter v. Kinsworthy, Admr., 30 Ark. 756; Eddy v. Loyd, 90 Ark. 340, 119 S.W. 264. The jurisdiction to entertain such suits by courts of law was not disturbed by the adoption of the Constitution of 1874. Turner v. Rogers, 49 Ark. 51, 4 S.W. 193; Meredith v. Scallion, 51 Ark. 361, 11 S.W. 516.

It is next insisted by appellant that the claim was not properly authenticated. The affidavit of the authentication set out the amount of the claim, that nothing had been paid toward the satisfaction thereof, and that the amount of $ 200 was justly due. This was a substantial compliance with the form of affidavit required in section 114 of Kirby's Digest. A substantial compliance in the matter of form of the affidavit is all that is required. Wilkerson v. Eads, 97 Ark. 296, 133 S.W. 1039; Hayden v. Hayden, 105 Ark. 95, 150 S.W. 415; Davenport v. Davenport, 110 Ark. 222, 161 S.W. 189.

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