Empire State Min. Co. v. Mitchell

• Citation: 74 P. 81,29 Mont. 55
• Parties: EMPIRE STATE MIN. CO. v. MITCHELL.
• Decision Date: 02 November 1903
• Court: Montana Supreme Court

74 P. 81

29 Mont. 55

EMPIRE STATE MIN. CO. v. MITCHELL.

Supreme Court of Montana

November 2, 1903

Commissioners' Opinion. Appeal from District Court, Deer Lodge County; Frank H. Woody, Judge.

Action by the Empire State Mining Company against Mary E. Mitchell executrix of Armistead H. Mitchell, deceased. Judgment for defendant. Plaintiff appeals. Reversed.

Milburn J., dissenting.

Cullen Day & Cullen, for appellant.

T. J Walsh, for respondent.

POORMAN C.

This is an action for damages alleged to have been caused by the decedent, A. H. Mitchell, in wrongfully and forcibly taking from the possession of plaintiff one quartz mill. Plaintiff filed a claim with the executrix, which was disallowed, a copy of which claim was attached to plaintiff's complaint as a part thereof. Defendant filed a general demurrer to the complaint, which was sustained, and, plaintiff refusing to amend his complaint, judgment was entered for the defendant for costs. From this judgment the plaintiff appeals.

The creditor's claim filed against the estate is in the usual form of such claims, and states that the claimant is a foreign corporation. The name of the corporation appears in the body of the claim, and is signed thereto as follows: "Empire State Mining Company, by Cullen, Day & Cullen, Its Attorneys, Claimant." The affidavit thereto is the following:

"State of Montana, County of Lewis and Clarke--ss. E. C. Day, one of the attorneys for the Empire State Mining Company, whose foregoing claim is herewith presented to the executrix of the last will and testament of the said deceased, being duly sworn, says: That the Empire State Mining Company is a corporation, and none of its officers except its said attorneys reside within the County of Lewis and Clarke, State of Montana, wherein its said attorneys reside, and that the amount thereof, to wit: the sum of ten thousand dollars, is justly due to said claimant; that no payments have been made thereon which are not credited, and that there are no offsets to the same to the knowledge of said affiant. E. C. Day.

"Subscribed and sworn to before me this 13th day of September, 1899. W. E. Cullen, Jr., Notary Public in and for Lewis and Clarke County, State of Montana. [Notarial Seal.]"

It is claimed by respondent that this affidavit is fatally defective. Section 2604, Code Civ. Proc., provides that 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: (1) That the amount is justly due; (2) that no payments have been made thereon which are not credited; and (3) that there are no offsets to the same to the knowledge of affiant. If the claim be not due when presented, or be contingent, (4) the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit (5) the reason why it is not made by the claimant. The oath may be taken before any officer authorized to administer oaths. The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim. Section 2606, Id., provides that when a claim is presented to a judge for his allowance he may, in his discretion, examine the claimant or others on oath, and hear any legal evidence touching the validity of the claim. This claim, if a claim at all, was due when presented, and was not contingent. The fourth requirement does not, therefore, apply. This affidavit complies directly with all the other specific requirements of the section, except the fifth, and whether it meets this requirement must be gathered from the portion of the statement made by affiant under oath, omitting the recital preceding the word "says." Under a strict construction of this section, this omission would be fatal. It will be noticed that the section does not, in specific terms, require the relationship between the affiant and the claimant to be stated. It is further proper to note that the claimant herein is a corporation, which can act only through its officers and agents.

These sections of our Code were copied from the laws of California and the Supreme court of that state, in Griffith v. Lewin, 62 P. 172, says, with reference to the sufficiency of an affidavit to a creditor's claim, "A substantial compliance with the statute is all that is required;" citing Hall v. Superior Court, 10 P. 257; Davis v. Browning, 27 P. 937; Warren v. McGill, 37 P. 144; Landis v. Woodman, 58 P. 857. In Re Estate of Swain (Cal.) 8 Pac. 497, this language is used: "The affidavits verifying these claims were irregular. Each was made by a person other than the claimant, styling himself 'as agent and attorney of the claimant.' In one no reason is stated why the affidavit was not made by the claimant. In neither does the...