Huffman v. Moore's Adm'r

• Decision Date: 20 May 1897
• Parties: HUFFMAN v. MOORE'S ADM'R.
• Court: Kentucky Court of Appeals

41 S.W. 292

101 Ky. 288

HUFFMAN v. MOORE'S ADM'R.

Court of Appeals of Kentucky.

May 20, 1897

Appeal from circuit court, Harrison county.

"To be officially reported."

Action by L. D. Huffman against the administrator of Jarrett Moore for a settlement of the intestate's estate. Petition dismissed, and plaintiff appeals. Reversed.

Blanton & Berry, for appellant.

LEWIS C.J.

Appellant having a demand for medicines furnished and medical services rendered to Jarrett Moore, amounting to $192, less $6.50 paid, brought this action in equity, against appellees John Moore, administrator of his estate, and John Moore, James Moore, and Alice Wilson, heirs at law. He states in his petition that decedent left no personal property with which to pay debts, and that the administrator has never made a settlement of his transactions as such, but that Jarrett Moore owned and was in possession at time of his death of a certain tract of land, identified and described in the petition. The relief prayed for by appellant is judgment for his debt, reference of the action to master commissioner of court to hear proof and settle the estate, and sale of the land, and application of proceeds to payment of appellant's debt, and all equitable relief. Accompanying the petition is an affidavit of appellant that his claim is just, due, and unpaid, is not subject to any offset or discount except a credit of $6.50, and that no usury is contained therein. There was also filed affidavit of another person, in substance that he knew said medicines were furnished and services were rendered, and that the prices charged in the account of appellant are just, customary, and reasonable. Nevertheless, motion was made to dismiss the action for want of proper verification; and this is an appeal from the judgment sustaining it.

The statute provides that all demands against the estate of a decedent shall be verified by written affidavit of the claimant, and also of another person; and, furthermore, that before an action shall be brought or recovery had on such demand, the required affidavits shall be made. It may be that the affidavits in question do not conform literally with the statute; and, besides, it does not appear that, prior to commencement of the action, demand of payment was made of the personal representative. But it does not seem to us that dismissal of an action of the nature of this was intended to necessarily result from such...