Jones v. Miller

• Decision Date: 11 June 1938
• Citation: 117 S.W.2d 745
• Parties: JONES v. MILLER et al.
• Court: Tennessee Supreme Court

Page 745

117 S.W.2d 745

JONES v. MILLER et al.

Supreme Court of Tennessee.

June 11, 1938.

Error to Circuit Court, Macon County; John A. Mitchell, Judge.

Action on a note by S. F. Jones, administrator ad litem of the estate of W. F. Miller, deceased, against Dan Miller and others. Judgment for plaintiff was affirmed by the Court of Appeals and defendant brings certiorari.

Certiorari denied.

J. M. Chamberlain, of Lafayette, for plaintiff in error.

C. R. Jent, of Lafayette, and P. J. Anderson, of Gainesboro, for defendants in error.

McKINNEY, Justice.

S. F. Jones, as administrator ad litem of W. F. Miller, who died intestate on August 7, 1935, instituted this suit against Dan Miller, a son of his intestate, on a note; the defense being the statute of limitations, and the reply, a new promise within the time of the bar. The magistrate entered a judgment in favor of the plaintiff for $223.26, which, upon appeal to the circuit court, was affirmed, and the judgment of the latter court was affirmed by the Court of Appeals.

The due date of the note was January 1, 1929. There is no controversy as to the facts. Mrs. Marshall, a daughter of deceased, made her home with him up until his death. Sometime before that event deceased turned his papers over to Mrs. Marshall to keep for him. Thereafter and about two months prior to the death of deceased, Mrs. Marshall asked her brother Dan about his note running out of date, to which he replied "that note is good for the balance of this year" (1935). Two days after the death of Mr. Miller, and before an administrator was appointed, Dan stated to his sister, Mrs. Leath, "that he owed this note and I am going to pay it." Mr. Leath was present and corroborated the foregoing testimony of his wife. Eight days later, and after Dan had qualified as administrator, his brother Herman testified that he was present when Dan asked Mrs. Marshall for the papers of his father so that he could report to the county court, and said he would have to report his note with others to said court. That on this occasion Dan said that "he would pay this note." The defendant, Dan Miller, offered no testimony in his behalf.

Under the title "Limitations of Actions," we quote from 37 C.J., 1136-1138, as follows:

"No acknowledgment of a debt not made to some person will interrupt the running of the statute. In some jurisdictions a promise or acknowledgment of a debt, although made to a stranger, is sufficient to take the debt out of the operation of the statute of limitations, especially in a jurisdiction where a statute providing that a written admission shall suffice does not impose any condition; and it seems to have been the rule at common law that a sufficient acknowledgment to bar the presumption of payment could be made to a stranger. The weight of authority is, however, that to take the debt out of the statute — particularly where the debt is already barred — the acknowledgment or promise must be made, not to a stranger, but to the creditor himself or to some one acting for him, or in privity...