Ellis v. Cauhaupe

• Decision Date: 04 August 1953
• Docket Number: No. 2604,2604
• Citation: 71 Wyo. 475,260 P.2d 309
• Parties: ELLIS, v. CAUHAUPE.
• Court: Wyoming Supreme Court

Page 309

260 P.2d 309

71 Wyo. 475

ELLIS, v. CAUHAUPE.

No. 2604.

Supreme Court of Wyoming.

Aug. 4, 1953.

John J. Spriggs, Sr., and John J. Spriggs, Jr., Lander, for appellant.

L. A. Crofts, Lander, for respondent.

BLUME, Chief Justice.

This is an action brought by the plaintiff on November 15, 1951, against Felix Cauhaupe, executor of the last will and testament of Jean Pierre Cantou, the latter having died in November 1949. The action was brought to recover the sum of $500 and interest. Judgment was rendered for the defendant and the plaintiff has appealed to this court.

The petition of the plaintiff, while in some portions is very uncertain, alleges in substance, as we construe it, as follows: At the time of the death of Jean Pierre Cantou, he was indebted in the sum of $500 on an account for pasturing and grazing on the land held or controlled by the plaintiff; that through the instrumentality of the U.S. Bureau of Land Management, plaintiff and defendant entered into a contract for grazing as above mentioned and Cantou promised to pay $1,500 for the same and there was due on that agreement the sum of $500 as above mentioned; that plaintiff duly presented her claim to the executor of the estate but the claim was not allowed. Plaintiff asked judgment for $500 with legal interest.

It will be noted that no dates are fixed and that plaintiff asked judgment both on an open account as well as on a contract. The petition does not state whether the contract was oral or in writing. However, no motion was filed by the defendant but he filed an answer some of which is immaterial herein. He filed a general denial, also pleaded that the claim filed with the executor is indefinite, evasive, and obscure; further alleged that whatever indebtedness arose in favor of the plaintiff was by reason of a written contract, found among the papers of deceased, dated June 25, 1937, between the plaintiff and J. P. Cantou, copy of which was attached to the answer marked Exhibit 'A' and that 'under the terms of said purported lease, referred to by plaintiff as aforesaid, any alleged claim for rental thereunder accrued not later than October 15, 1937, and that plaintiff's cause of action herein, if any, is barred by the so called Statute of Limitations under the laws of the State of Wyoming.' The plaintiff demurred to all of the various answers except the general denial. That demurrer was overruled and thereupon plaintiff filed a reply insisting upon the demurrer, and answering further that there was a lease between plaintiff and Cantou (wrongly stated as dated October 1, 1937) and that the balance of rental due was $500, to be paid on or before October 15, 1937. The reply admits that Exhibit 'A' of the answer is a copy of the lease sued on by plaintiff and denies that the claim of plaintiff is barred by the so-called statute of limitations.

There are only two matters which we deem of sufficient importance herein to discuss. The first is the sufficiency of the claim filed with the executor of the estate. That claim is as follows (omitting the verification):

'In the Matter of Estate of J. P. Cantou, deceased

The undersigned, creditor of J. P. Cantou, deceased, present claim against the Estate of said deceased, with the necessary vouchers for approval as follows, to-wit:

Estate of J. P. Cantou, Deceased

To Lillian Ellis, Dr.

Balance on pasture contracted thru Bureau of Land Management of U. S. $500 and interest at 7%.'

It is, of course, no wonder that the executor objected to an indefinite statement of that kind. Although plaintiff pleaded an indebtedness due on an account, he also pleaded a contract, which in the reply is admitted to have been in writing, and that plaintiff's action is based thereon. Section 6-1606, W.C.S.1945, provides among other things: 'If the claim be founded on a bond, bill, note, or any other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, * * *.' Since the action was in fact an action upon a written contract, there was no compliance with the provisions of this statute. In 34 C.J.S., Executors and Administrators, § 417, p. 194, it is stated that a statement presented to the executor 'shall be so clear and unambiguous as to distinguish the claim with reasonable certainty from all other similar claims, and that it shall give such information concerning the nature and amount of the demand as will enable the representative to act intelligently in providing for its payment or in rejecting it.' That statement of the law was approved in the case of Sowers v. King, Wyo., 231 P. 411, on rehearing 32 Wyo. 167, 238 P. 540. We hardly think that the claim filed in this case complied with this rule.

We shall not, however, decide whether or not the court was justified in rendering its judgment because of the insufficiency of the claim presented to the executor of the estate of Cantou and proceed to consider the point remaining in this case, namely, whether the claim was barred by the statute of limitations. Under § 3-504, W.C.S.1945, an action on a written promise is barred in ten years, on an account in five years, after the action accrued. Defendant pleaded that the claim sued on accrued not later than October 15, 1937. That was a statement of fact. The reply admits that, and that fact was also shown by the evidence in this case. More than ten years accordingly had elapsed when the action was commenced. Counsel for plaintiff, however, contend that the answer does not show when the action herein was commenced and that it was necessary that that be shown in the answer. He relies upon United States Fidelity & Guaranty Co. v. Parker, 20 Wyo. 29, 121 P. 531, in which it was held that in view of the fact that an amended petition was filed and the original petition was supplanted by the amended petition, so that the original petition was no longer properly before the court, it could not tell when the action was commenced. It has been said of this holding in the case of Norwood v. Eastern Oregon Land Co., 139 Or. 25, 5 P.2d 1057, 1062, 7 P.2d 996, that: 'Such holding is not in keeping with the better reasoned cases.' However that may be, there was no amended petition in this case at bar. The original petition was directly before the court, so that in this case the court should take judicial notice of the time in which the action herein was commenced. Thus it is said in 20 Am.Jur. § 86, p. 104: 'It is well settled that a court will take judicial notice of its own records in the immediate case or proceeding before it and of all matters patent on the face of such records, including all prior proceedings in the same case, * * *.' In 31 C.J.S., Evidence, § 50, p. 620, the general rule is stated as follows: 'Accordingly a court, by the use of judicial notice of its records, may ascertain such facts as that a certain case or appeal is or is not pending, that a claim is or is not barred by the statute of limitations, and other facts which may be obtained from its records.' (Italics supplied.) See also 23 C.J. 110, note 3, and Blakeney v. Francis,...