Hinshaw v. Estate of Warren

• Decision Date: 02 December 1912
• Citation: Hinshaw v. Estate of Warren, 151 S.W. 497, 167 Mo.App. 365 (Mo. App. 1912)
• Parties: A. J. HINSHAW, Plaintiff in Error, v. Estate of ROBERT WARREN, Defendant in Error
• Court: Missouri Court of Appeals

151 S.W. 497

167 Mo.App. 365

A. J. HINSHAW, Plaintiff in Error, v. Estate of ROBERT WARREN, Defendant in Error

Court of Appeals of Missouri, Springfield

December 2, 1912

Writ of error to Pulaski Circuit Court.--Hon. L. B. Woodside Judge.

AFFIRMED.

Judgment affirmed.

George M. Reed for plaintiff in error.

(1) The first assignment of error is the refusal to give declaration of law numbered 2, requested by plaintiff in error.Wright v. Pratt,17 Mo. 43;Lumber Co. v Wright,114 Mo. 326;McGrath v. Railroad,128 Mo. 1;Nicholls-Shepard Co. v. Donavon,67 Mo.App 286;McFaul v. Haley,166 Mo. 56;Baker v. Henry,63 Mo. 517.(2)Sec. 194, R. S. 1909, declares: "And such claim shall be considered legally exhibited from the time of serving such notice or a waiver of such notice, in writing, by the executor or administrator."Little v. Reid,75 Mo.App. 266;Ryans v. Boogher,169 Mo. 673.(3) A debt that is barred by the Statute of Limitations is not, by the reason of that fact, satisfied or otherwise extinguished, but the man that owes the debt can avoid a personal judgment by pleading the statute.Cowan v. Mueller,176 Mo. 192.(4)The Statute of Limitations is not available as a defense, unless specially pleaded.Hearne v. Railroad,53 Mo. 324;Choteau v. Allen,70 Mo. 290;Whiteside v. Manniker,75 Mo.App. 364;Elson v. Pryor,87 Mo.App. 157.(5)The statute could not be pleaded for the first time in the circuit court.Revelle v. Railroad,74 Mo. 438;Bell v. Clark,30 Mo.App. 224;Harper v. Urbank,32 Mo.App. 258;Young v. Railroad,33 Mo.App. 509;Johnson v. Blell,61 Mo.App. 36;Harmon v. Armstrong,5 Mo. 274;Win v. Cory,48 Mo. 346;Berry v. Shakelford's Administrator, 30 Mo. 392.

Holmes & Holmes for defendant in error.

(1)The court did not commit error in refusing instruction No. 2.There is evidence on which to base it.Savings Bank v. Burgin,73 Mo.App. 108;Nelsor v. Haeberle,26 Mo.App. 3;Price v. McClause,30 Mo.App. 630.(2) The demand was barred by the Five-Year Statute of Limitations.R. S. 1909, Sec. 1899.Burris v. Cook,215 Mo. 496;Stewart v. Jones,219 Mo. 638;Burris v. Cook,117 Mo.App. 385;Loomis v. Railroad,165 Mo. 469;Prater v. Hargrove,214 Mo. 142;Little v. Reid,141 Mo. 242;Keys v. Keys,217 Mo. 65;Savings Bank v. Burgin,73 Mo.App. 116;Hull v. Sherwood,59 Mo. 172;Bauer v. Gray,18 Mo.App. 170.(3)Claimant is not entitled to contribution.He was co-maker of the note.It was his debt.If he paid off the judgment that act extinguished the judgment, and he has no right of action against his co-makers of the note.Burris v. Cook,215 Mo. 496;McPherson v. Meek,30 Mo. 345;Wyatt v. Fromme,70 Mo.App. 613;McGinnis v. Loring, 126 Mo. 404.

OPINION

GRAY, J.

--On the fifth day of October, 1904, a judgment was rendered in the circuit court of Maries county, in favor of the Pulaski County Bank v. W. W. P. Hinshaw, Robert Warren, and A. J. Hinshaw.On the 30th day of December of that year, A. J. Hinshaw paid the judgment and costs in full.Robert Warren died on the 22d day of August, 1909, and letters of administration on his estate were issued on the 27th day of that month.On the 30th day of December, A. J. Hinshaw prepared a demand against the estate of Robert Warren for one-half of the amount he had paid on said judgment.This demand was taken to the home of the clerk of the probate court and there sworn to by Mr. Hinshaw before said clerk, who redelivered it to the representative of Mr. Hinshaw, who, in turn, sent it to Edwin Long, the administrator of the Warren estate, who, by writing entered on the back of the demand, waived notice of presentation of the same.On the 6th day of January, 1910, the demand was filed in the office of the clerk of the probate court.On the 9th day of May, 1910, the probate court refused to allow the demand, and assigned as reason therefor that it was barred by the Statute of Limitations.From this judgment the plaintiff appealed to the circuit court, and was defeated on trial before the court on the 25th day of March, 1911, and appealed to this court, but his appeal was dismissed, and he afterwards sued out a writ of error in this court.

Was the probate court justified in refusing the demand, on the ground that it was barred by the Statute of Limitations?This is the only question in the case.

There was testimony tending to prove that the note on which the judgment of the Maries County Circuit Court was based, was signed by A. J. Hinshaw and Robert Warren as sureties for W. W. P. Hinshaw, and therefore, when the plaintiff in error paid that judgment on the 30th day of December, 1904, he was entitled to recover from Robert Warren one-half of the amount paid, provided he instituted his suit within the Five-Year Statute of Limitation.The death of Robert Warren, on the 22d day of August, 1909, stopped the running of the statute until letters of administration were issued on the 27th of the same month.If the delivery of the claim to the probate clerk at his home on the 30th day of December, 1909, was a filing of it with him as clerk of the court, or, if the acknowledgment of service on the claim by the administrator, on the 4th day of January, 1910, stopped the running of the Five-Year Statute of Limitations, then the judgment must be reversed.

The evidence shows that the claim was made out but not sworn to, and on the evening of the 30th, after the clerk had gone to his home from his office, it was delivered to him, and that he swore the plaintiff to it and fixed his jurat to the oath and delivered the claim to plaintiff's representative to be sent to the administrator for acknowledgment of service.There was no testimony that the clerk was asked to file the claim, and it was not until the 6th day of January, 1910, that it was taken to the probate office and there marked "filed" by the clerk.If the plaintiff had delivered his claim to the clerk in the office of the probate court and requested him to file it, and then obtained possession of it from the clerk for the purpose of sending it to the administrator, we would not hesitate to hold that it was really filed in the office of the clerk on the 30th day of December.But to take a paper to the home of the clerk for the purpose of having it sworn to, and with no request for the clerk to file it, was not, in our judgment, the filing of the paper within the meaning of the law.

Did the delivery of the demand to the administrator on the 4th of January stop the running of the General Statute of Limitations?

Sec. 1756, R. S. reads: "The filing of a petition in a court of record, or a statement or account before a court not of record, and suing out of process therein, shall be taken and deemed the commencement of a suit."Our courts have, in several cases, measured the limitation statutes by this section, and whether a suit was commenced within the Statute of Limitations has been determined by whether the plaintiff instituted his suit within the meaning of this section.

The plaintiff in error claims the running of the general statute is arrested by serving the claim upon the executor or administrator, under Sec. 194, R. S. 1909, which reads: "Any person may exhibit his demands against such estate by serving upon the executor or administrator a notice, in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded; and such claim shall be considered legally exhibited from the time of serving such notice or a waiver of such notice, in writing, by the executor or administrator.

In order to properly construe this section, preceding ones must be considered.Section 190 deals with the classification of demands and requires that general demands be legally exhibited against the estate within one year after the granting of letters, in order to become fifth class demands; and that all demands exhibited after the end of one year, but within two years, shall be assigned to the sixth class.Section 191 provides that all demands not thus exhibited in two years shall be forever barred.

Now section 194 deals only with exhibiting of demands, and provides that a claim shall be considered legally exhibited from the time of serving the notice upon the executor or administrator.The Legislature, in these sections, was not dealing with the General Statute of Limitations at all, but only the special statute requiring claims to be exhibited and presented within a certain time.This is made apparent by Secs. 192 and 193, R. S. 1909.The first provides that actions pending against any person at the time of his death, which by law, survive against the representative, shall be considered demands legally exhibited from the time of the revival of the action; and section 193 provides that all actions commenced against executors and administrators after the death of the deceased shall be considered demands legally exhibited against such estate from the time of serving the original process on the executor or administrator.

Now these two sections clearly provide that, notwithstanding suits were commenced in courts of record which would stop the running of the General Statute of Limitations, the demands included in those suits must be exhibited to the...