Ellsworth v. Busby

• Decision Date: 08 April 1935
• Docket Number: 31630
• Citation: 172 Miss. 399,160 So. 575
• Court: Mississippi Supreme Court
• Parties: ELLSWORTH v. BUSBY et al

160 So. 575

172 Miss. 399

ELLSWORTH v. BUSBY et al

No. 31630

Supreme Court of Mississippi

April 8, 1935

Division B

Suggestion Of Error Overruled, May 6, 1935.

APPEAL from the chancery court of Jones county HON. A. B. AMIS, SR. Chancellor.

Suit by William H. Ellsworth against W. L. Busby and another. From a decree sustaining a demurrer and dismissing the bill complainant appeals. Reversed and remanded.

Reversed and remanded.

Welch & Cooper, of Laurel, for appellant.

One of the objects of the statute in requiring claims to be probated, allowed and registered is that the administrator and all other parties concerned may ascertain what debts are claimed to be due by the estate, and act intelligently in determining whether the same are just and should be paid, or whether same should be contested. The statute also clearly contemplates that, in presenting claims against the estate of a decedent, the evidence or statement of same must on its face show a prima facie right in the claimant to recover from the estate the amount claimed and that it must disclose the nature and amount of the claim with sufficient precision to bar, when paid, an action therefor.

Lehman v. Powe, 49 So. 622, 95 Miss. 446; Duffy v. Kilroe, 76 So. 681, 116. Miss. 70; Goulden v. Ramsey, 85 So. 109, 123 Miss. 1; Levy v. Merchants Bank & Trust Co., 86 So. 807, 124 Miss. 325; Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958; Finck v. Brewer, 96 So. 402, 133 Miss. 9.

It is respectfully submitted that the learned court below was in error in holding that the account in the present case was not sufficiently itemized and that under the principles announced by this court which are to control in the preparation of the account, it is sufficient.

The appellant does not take issue with the statement that a judicial officer or an officer exercising a judicial function is not liable except in the case of wilful wrong or corruption. But appellant does urge that the act of the clerk in omitting to do what the statute required of him was the omission to do a purely ministerial duty.

Mechem on Public Officer, sec. 664, page 445.

The failure of the appellee was a breach of a ministerial duty for which he is liable.

Lewis v. State, 65 Miss. 468, 4 So. 429; White v. Mills, 64 Miss. 158, 8 So. 171; Planters Bank v. Conger, 12 S. & M. 527; State of Mississippi v. Baker, 47 Miss. 88; McNutt v. Livingston, 7 S. & M. 641; Brown v. Lester, 13 S. & M. 392; Bowling v. Arthur, 34 Miss. 40.

In the case of an itemized account, the clerk determines whether it is itemized and whether it is sworn to. An inspection by the clerk will clearly disclose these facts. We say that there is nothing in this that is judicial in its nature.

Mechem on Public Officers, secs. 657 and 658, page 442; McNutt v. Livingston, 7 S. & M. 641; Grider v. Tally, 77 Ala. 422, 54 A. R. 65; 22 R. C. L., p. 391, sec. 26.

D. B. Cooley and Deavours & Hilbun, all of Laurel, and Paul B. Johnson, of Hattiesburg, for appellees.

The claim was not itemized as required by law.

Section 1671, Code of 1930; Stevens v. Dunlap Mercantile Co., 73 So. 570; Finck & Co. v. Brewer et al., 96 So.402.

The very language of the statute imports that the clerk has power to approve or disapprove.

The effect of the probate of a claim has many of the elements of a judgment. The probation, allowance and registration of a claim has all the elements of a judgment subject to the right of review by the chancery court or the chancellor in vacation on a contest instituted for that purpose.

All of the provisions of sections 337 and 338 of the Code of 1930, with reference to the estates of deceased persons and with reference to guardianships were exercised by the probate judge prior to the adoption of the Constitution of 1869, and in so doing the probate judge acted judicially. And it was only a matter of convenience that these judicial functions were vested in the clerk after the transfer of probate jurisdiction to the chancery court.

Stevens v. Dunlap Mercantile Co., 73 So. 570, 112 Miss. 524.

The scheme of our administration laws is that the creditor must not only comply with the statute himself, but the further duty devolves upon him to see that the clerk approves and allows his claim by proper indorsement within one year; otherwise his claim is barred.

Merchants & Manufacturers Bank of Ellisville v. Fox, 147 So. 789, 165 Miss. 833; Ellsworth v. Fox, 147 So. 790.

An act which requires the exercise of judgment in its performance, or an act which an officer may, or may not, do in the exercise of his official discretion, is not ministerial, but discretionary. A discretionary duty may be executive or judicial, according to the nature of its subject-matter.

46 C. J., sec. 303, page 1036, and sec. 328, pages 1043-4; 22 R. C. L., pp. 485-6; 23 Am. & Eng. Ency. of Law, pages 375-7; National Surety Co. et al. v. Miller, 124 So. 251.

Argued orally by Ellis B. Cooper, for appellant, and by Henry Hilbun and D. B. Cooley, for appellee.

OPINION

Ethridge, P. J.

Appellant brought suit in the circuit court against W. L. Busby, chancery clerk, and the United States Fidelity & Guaranty Company, surety on his official bond. The case was transferred to the chancery court, and the pleadings were made to conform to that court. The bill charged that W. L. Busby was the clerk of the chancery court of Jones county, Mississippi, during the years 1931, 1932, and 1933, and that, as required by law, he gave bond with the United States Fidelity & Guaranty Company as surety thereon, a copy of which was made an exhibit to the bill. It was alleged that Busby appointed Charles T. Walters as his deputy for and during the years aforesaid; that said Walters, as such deputy clerk, acted for Busby, who was, in law, responsible for the acts of his deputy. It was further alleged that there was pending in the chancery court a case entitled "In the matter of the estate of D. B. Fox, deceased, F. O. Fox, Administrator," No. 6064 on the docket of said court, and that said estate was being there administered, and F. O. Fox was the administrator, and had published notice to creditors as required by law.

It is alleged that at the time of the death of said D. B. Fox, he was indebted to Ellsworth in the sum of three thousand eight hundred sixteen dollars and ninety-four cents plus interest from December, 1931, same being the balance due on premiums on liability and fire insurance policies; that appellant, Ellsworth, filed his account against the estate attaching to said account the affidavit required by law, and presented it to Walters, the deputy chancery clerk, then acting as a deputy for Busby, chancery clerk; and that said clerk did approve said claim and registered it on March 19, 1932, and did, on the printed form reading, "Probated and allowed for $-- and registered this the -- day of -- A. D. --," insert in the first blank "three thousand eight hundred sixteen dollars and ninety-four cents" and in the second blank he inserted "19th," in the third blank "Mch.," and in the last blank "1932," so that it read: "Probated and allowed for three thousand eight hundred sixteen dollars and ninety-four cents and registered this the 19th day of Mch. A. D. 1932."

But appellant avers that Busby, personally and through his deputy, wholly failed to sign his name officially thereto as required by law. That the said deputy clerk then and there told the appellant that said claim was duly probated, registered, and allowed. A copy of said claim was attached to the bill. The bill further avers that on June 20, 1932, the administrator filed an objection to said claim on the ground that Busby had not officially signed the certificate of probation.

It is alleged that after the hearing, the court disallowed the claim, and an appeal was taken to the Supreme Court of Mississippi, where the action of the chancery court of Jones County was affirmed. Appellant avers that, by reason of the failure of the chancery clerk to perform the duties of his office, he, said appellant, has been damaged in the sum of three thousand eight hundred sixteen dollars and ninety-four cents with interest from December, 1931. The bill prayed for a decree against W. L. Busby and the sureties on his official bond, and for other and further special and general relief. The affidavit to the account conformed to the statutory requirements.

The bill was demurred to on the following...