Horne v. McAlpin

• Decision Date: 12 February 1912
• Docket Number: 15,229
• Citation: 101 Miss. 129,57 So. 420
• Court: Mississippi Supreme Court
• Parties: F. O. HORNE v. J. B. MCALPIN, ADMINISTRATOR

57 So. 420

101 Miss. 129

F. O. HORNE v. J. B. MCALPIN, ADMINISTRATOR

No. 15,229

Supreme Court of Mississippi

February 12, 1912

APPEAL from the chancery court of Newton county, HON. SAM WHITMAN JR., Chancellor.

In the matter of the estate of R. M. Wells, deceased. From a decree sustaining the objections of J. B. McAlpin, administrator to claims of F. O Horne, claimant appeals.

The facts are fully stated in the opinion of the court.

Decree affirmed.

Chalmers Alexander for appellant.

It appears that in making up the record the clerk failed to make a copy of the note. On page 7 of the record are the words in parentheses "note not on file with papers and therefore cannot make copy." It is shown however that the note was presented before the court (page 7) and the clerk as a witness examined the note and testified in regard to it. It is not the fault of the appellant that the records fails to include copy of the note. And appellant has taken steps for a rule on the clerk of the court below to find and make copy of the note.

It may not be amiss to state (with permission of opposing counsel) that shortly after this case was tried in the court below the county court house and its library and most of the papers were destroyed by a fire which began in the night time. Hence the record is very ragged. We mention this as explaining no doubt the reason why the note, which was examined by the attorneys and the court and shown in evidence is not probably to be found now.

Another matter may be mentioned here. The three claims were filed for probate in 1908. Not until December, 1910, did the matter of the contest of the claims come up for hearing before the chancellor. In fact the contest itself was not filed until June, 1910. But it appears that an original account was actually filed by Horne showing the fifteen hundred and ninety-five dollars and forty-two cents; and that account for sixty-nine dollars and eighty-four cents and tax receipt totaling ninety-eight dollars and twenty-nine cents were filed for probate; and that the note for one thousand and sixty dollars was actually filed for probate. Hence, if by lapse of time, and destruction of the court house, the record is to an extent in defective condition, we yet respectfully urge upon the court a decision upon the merits of this vital question.

S. A Witherspoon, Jr., for appellee.

But not only are none of these claims copied in the record, but the record shows that it is impossible to have any of them copied therein for the reason that neither the note nor either of the accounts nor the tax receipt have been left on the file among the papers in the cause, and it is therefore impossible for the clerk to furnish this court a record containing said note and...