In re Landers' Estate.Osborn v. Osborn.

• Decision Date: 04 December 1929
• Docket Number: No. 3216.,3216.
• Citation: 34 N.M. 431,283 P. 49
• Parties: In re LANDERS' ESTATE.OSBORN et al.v.OSBORN.
• Court: New Mexico Supreme Court

34 N.M. 431

283 P. 49

In re LANDERS' ESTATE.OSBORN et al.

v.OSBORN.

No. 3216.

Supreme Court of New Mexico.

Dec. 4, 1929.

Syllabus by the Court.

The trial court will take judicial notice of an order made in the course of the proceedings pending before it in order to determine whether a party has the right to litigate therein.

Failure to introduce proof authorizes judgment against the party having the burden.

Requirements of sections 2277 and 2278, Code 1915, are mandatory, and neither heirs nor administrator can waive them, nor can their conduct result in an estoppel which prevents the bar of the statute.

An order of the probate court allowing a claim includes an adjudication of all facts necessary to support such adjudication.

Appeal from District Court, Curry County; Ed Mechem, Judge.

Proceeding for the allowance of the claims of H. W. Osborn, J. M. McCuan, and Clara Williams against the estate of George W. Landers, deceased, of which H. W. Osborn was administrator, and in which W. B. Osborn made a motion to strike such claims. From an adverse order, said W. B. Osborn appeals. Affirmed in part, and in part reversed and remanded, with instructions.

Probate court order allowing claim includes adjudication of all necessary supporting facts.

Fitzhugh & Fitzhugh, of Clovis, for appellant.

Patton & Patton and A. W. Hockenhull, all of Clovis, for appellees.

SIMMS, J.

The facts of this case have been partially stated in Re Landers' Estate (N. M.) 263 P. 509, where we refused to dismiss this appeal.

Appellant is here presenting certain legal questions on the record proper; there being no bill of exceptions or transcript of testimony in the record.

The pleadings in this matter have been considerably involved, and in particular the appellant has contributed to this result. He started out to get rid of four claims against the estate of the deceased; by a motion in the district court to strike them because they had not been filed within the year after the appointment of the administrator. Section 2278, Code 1915. In this motion he alleged that he was a party in interest by means of the assignment to him of two allowed claims, and also by assignment of all her right, title, and interest in the estate from the sole heir of the deceased. Two of the claimants answered his motion, treating it as a complaint, and denied that he was assignee or had any interest in the matter, and further setting up facts upon which they claimed an estoppel. Appellant then filed another motion to strike, this time directed against the answer on legal grounds. He says he intended this motion to be treated as a motion for judgment on the pleadings, and the lower court and appellees evidently treated it in that light. We will so consider it here. The court overruled his motion, and appellant refused to plead further. He did not offer any evidence. The lower court then overruled his first motion to strike the claims, and allowed them, from which this appeal followed. The third claimant, Clara Williams, in her answer to the first motion, did not deny appellant's status as a party in interest, but set up facts by way of estoppel, as did the other claimants. A similar course of ruling was had on her claim, and appellant appeals from that order also.

[1] 1. Appellees contend that, since two of them denied the allegation of interest of appellant, and no proof was offered, the judgment overruling appellant's motion amounts to an adjudication by the lower court that the appellant had no interest in the case as assignee or otherwise and should not be heard. The record contains the order of removal of the administration from the probate to the district court, under chapter 40, Laws 1919, under appellant's application wherein he says he is a party in interest and the administrator entered his general appearance and did not object to the order. The effect of this order was to adjudicate that appellant was, as he claimed to be, a party in interest who had a right to apply for the removal. It bound the administrator and those represented by him. The trial court should have taken judicial notice of this order, made as it was in the same cause pending before him. Baca v. Catron, 24 N. M. 250, 173 P. 862. Appellees had no right to tender an issue of fact as to appellant's status unless and until they had gotten rid of the effect of the order of removal, by proper proceedings directed against it, and the trial court should not have considered that there was any issue of fact made by the pleadings, as to appellant's right to sue. As a party aggrieved, appellant had the right of appeal. Chapter 43, Laws 1917, which was in force when judgment was entered, now rule 2, § 1, of the Rules of this court.

[2] 2. Next we should dispose of the question of whether the court erred in refusing to remove the administrator, where appellant affirmed and the administrator denied the grounds put forward as cause. Since appellant had the burden of sustaining petition for removal, and introduced no proof, the court properly denied the petition.

[3] 3. Appellant claims that there is error in the court's judgment allowing the claims of Clara Williams for $612.80 and John M. McCuan for $250, for the reason that it appears from the record that neither of them were filed in the probate court within one year after the date of the administrator's appointment. By his motion for judgment on the pleadings he admits the truth of the defensive allegations of the claimants. Reed v. Rogers, 19 N. M. 177, 141 P. 611; Dugger v. Young, 25 N. M....