Horst v. McCormick H. M. Co.
| Decision Date | 14 October 1890 |
| Citation | 30 Neb. 558,46 N.W. 717 |
| Parties | HORST ET AL. v. MCCORMICK H. M. CO. |
| Court | Nebraska Supreme Court |
1. An action against heirs, devisees, or legatees to recover real or personal estate which has been received by them as distributees of any estate which is liable for any debts under the tenth subdivision, or division on “Contingent Claims,” c. 23, Comp. St., is not an original action, but a special proceeding for the enforcement and collection of a claim allowed or established in the county court. The district court of the proper county has jurisdiction of such proceeding.
2. In a case where a claim against a decedent's estate was allowed in the county court, an appeal upon such allowance taken to the district court by the administrator, the claim again allowed in the district court, and certified back to the county court, held, that the one-year time limited for bringing an action or proceeding thereon, under section 266, c. 23, Comp. St., commenced to run upon the entry of such certification in the county court.
Error to district court, Polk county; NORVAL, Judge.A. C. Montgomery, for plaintiffs in error.
R. Wheeler, for defendant in error.
This action was brought in the district court of Polk county for the purpose of establishing the lien of the plaintiff upon certain real estate, the property of W. B. Damude, deceased, which had been by the county court of said county distributed to and received by the heirs of said deceased, and by them conveyed to other persons, who were also made defendants. The plaintiff's claim against the deceased, which was for agricultural machinery sold to him in his life-time, was presented to the county court, and by it allowed; whereupon the administratrix of the estate appealed the said case to the district court. Here the judgment of the county court was affirmed. The judgment was afterwards, on the 15th day of June, 1888, duly certified by the said district court to the said county court, and the administratrix of said estate was thereupon by the said county court ordered to pay the same out of any personal property or moneys belonging to said estate, and in her hands. There was no money or other personal property belonging to said estate; and in the mean time, on the 30th day of March, 1886, upon hearing in the said district court for a partition of said estate among the heirs at law of said deceased, it was finally decreed that said defendants, Laura Labbart and Alice Hanson, have, as their share of said estate, the S. 1/2 of the S. E. 1/4 of section 24 in township 15 of range 3 W., in Polk county, and that they, the said Laura Labbart and Alice Hanson, pay all just claims against said estate. The foregoing is the cause of action as set out in the amended petition. There had been a petition, which was demurred to, and the demurrer sustained. There was neither demurrer nor answer to the amended petition, which was taken as confessed by default; and, upon evidence, judgment was rendered for the plaintiff for the sum of $144.07, and costs, which was made a lien upon the real estate above described. The cause was brought to this court upon error. The following are the errors assigned: (1) The cause of action is against heirs and their assignees to recover under section 266, c. 23, Comp. St., and was not brought within one year from the time said action accrued. (2) The court had no jurisdiction of the cause of action. (3) The court erred in overruling the demurrer. (4) The court erred in entering judgment on the amended petition. (5) The defendant in error had obtained judgment against Cornelia Damude, who is one of the plaintiffs in error, for this same cause of action, which said judgment is a bar to any further cause of action. (6) The amended petition of the plaintiff was not filed within 30 days from the 22d day of May, 1888, and the plaintiffs herein had no knowledge of the filing of said petition until after judgment was rendered thereon. (7) For errors of law appearing in this case. There was no motion for a new trial, nor is there any bill of exceptions in the case. All of defendants being in default of an answer, w...
To continue reading
Request your trial
- McCarn v. Cooley
- McCarn v. Cooley
-
Holden v. Turrell
...have not been able to present a case in point, nor have we succeeded in finding an authority which covers it directly. In Horst v. McCormick, 30 Neb. 558, 46 N.W. 717, seems to have been assumed, with the same statute in force, that the "claim" to be allowed and established was one against ......
-
Holden v. Turrell
...not been able to present a case in point, nor have we succeeded in finding an authority which covers it directly. In Horst v. Machine Co., 30 Neb. 558, 46 N. W. 717, it seems to have been assumed, with the same statute in force, that the ‘claim’ to be allowed and established was one against......