Harris v. Hutcheson

• Citation: 3 So. 34,65 Miss. 9
• Parties: HARRIS, PARKER & CO. v. G. W. HUTCHESON, ADMINISTRATOR
• Decision Date: 24 October 1887
• Court: United States State Supreme Court of Mississippi

3 So. 34

65 Miss. 9

HARRIS, PARKER & CO. v. G. W. HUTCHESON, ADMINISTRATOR

Supreme Court of Mississippi

October 24, 1887

APPEAL from the Chancery Court of Warren County, HON. WARREN COWAN Chancellor.

Harris Parker & Co., sued out an attachment against J. F. Halpin &amp Co., in 1883, and caused a writ of garnishment to be served thereunder on one Lewis Peters. Peters answered denying any indebtedness, and issue was joined on his answer. Judgment was rendered in the attachment suit against Halpin & Co., in favor of Harris, Parker & Co., but no trial has ever been had on the issue joined on the answer of Peters.

In August, 1885, Peters died, and G. W. Hutcheson was appointed administrator of his estate. Thereupon he gave notice, under § 2028, Code of 1880, to all creditors to register their claims against the estate of the decedent within a year. The claim of Halpin & Co., against Peters, was not registered within a year either by Halpin & Co., or Harris, Parker &amp Co., the attaching creditors. The garnishment proceedings were revived against the administrator. Subsequently the estate was declared insolvent, and all creditors notified to file their claims for examination and allowance. Accordingly Harris, Parker & Co., presented a claim for this debt due by Peters to Halpin & Co. The Chancellor refused to allow the claim to Harris, Parker & Co., because it had not been registered within a year after notice by the administrator, as provided in § 2028, Code of 1880. From this action of the Chancellor, Harris, Parker & Co., appealed.

Reversed and remanded.

Catchings & Dabney, for the appellants.

We do not think that § 2028, Code of 1880, has any application to a claim in litigation at the time of the death of defendant. The penalty pronounced in the section is that "no suit shall be maintained thereon," etc. Clearly negativing the idea that it extends to pending suits.

Sections 1513 and 2061 govern in this case. By the first it is provided that a pending suit against one at his death may be prosecuted to final judgment against his representative "in the same manner as if the original party were in existence." And in the second, it is provided that suits against executors and administrators, when an estate shall be declared insolvent, shall not on that account abate, but may be prosecuted to judgment, and the judgment shall constitute a claim against the estate "if registered as other claims." If it (the judgment) must be registered, how can registration be had before the judgment shall be rendered, and who can say that the judgment will be rendered within the one year mentioned in § 2028?

If this section (2028) applies, two registrations must be contemplated by § 2061, one before judgment, when it was uncertain what the debt, if any, was, and the other after it shall be ascertained.

The matter of the garnishees indebtedness lies in the knowledge of himself and the defendant, and not with the plaintiff.

How then can the plaintiff be expected to swear to an account or statement, and upon what data is he to prepare any such account or statement, and where is he to get such data? Is he to make out and swear to an account upon conjecture?

These questions show the absurdity of the contention that a claim of the character which appellants had against the estate ought to have been, or could have been, registered.

Section 2027, Code of 1880, which prescribes how different kinds of claims shall be proved to be registered, does not provide for this class of claims. Trezevant v. McQueen, 12 S. & M. p. 575; Geo. Dig. p. 297; § 276, et seq. ; see also Holman v. Fisher, 49 Miss. 472; sections of code referred to are 1513, 2027, 2028, and 2061.

Miller, Smith & Hirsh, for the appellee.

To remedy an existing evil, it was enacted that the knowledge of the claim by the executor or administrator would not affect or impede the operation of the statute.

No ambiguous or equivocal terms are employed: "All claims must be registered."

These sections were under consideration in the cases of Ales v. Plant, 61 Miss. 259, and were judicially recognized and declared to be "the most severe and stringent law against unregistered claims that we have ever had."

"The meaning of "all claims" is clear, and if not restricted by construction, the term undoubtedly embraces the claim of appellants. The pending of a suit constitutes notice to the personal representative, but the statute makes no exception in favor of litigation.

The appellant in asserting that the "penalty in the section is that 'no suit shall be maintained thereon, &c.,'" simply eliminates from consideration the most rigorous of all its features, that unregistered claims "shall be barred."

It is not compulsory upon the party suing to further prosecute the suit or action after the estate is reported insolvent, for the claim sued on can be registered, and "its validity" may be "determined by the Chancery Court."

The difficulties in practice suggested by appellant are imaginary, and, if otherwise, would not justify any transgression of well recognized canons of construction.

The strict maintenance of the letter of the statute, in all its vigor and purity, will avoid confusion, obviate delay, and insure the accomplishment of the design of the Legislature.

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