Jordan v. Love

• Decision Date: 03 December 1934
• Docket Number: 31427
• Citation: 171 Miss. 523,157 So. 877
• Court: Mississippi Supreme Court
• Parties: JORDAN et al. v. LOVE

157 So. 877

171 Miss. 523

JORDAN et al. v. LOVE

No. 31427

Supreme Court of Mississippi

December 3, 1934

Division B

Suggestion Of Error Overruled January 14, 1935.

APPEAL from the chancery court of Leake county HON. M. B MONTGOMERY, Chancellor.

Claim by J. S. Love, Superintendent of Banks, against the estate of the decedent of Della Jordan and others. Judgment for claimant, and deceased's representatives appeal. Reversed and remanded (with directions).

Reversed and remanded.

C. E. Morgan, of Kosciusko, and A. M. Byrd, of Meridian, for appellants.

Was the copy of the note which remained on file with the clerk in this case such a certified copy as was and is required by section 1671, by virtue of its having been certified to by the clerk prior to the return of the original note to the attorney for the appellee, when the certificate of the clerk was detached from the copy of the note and returned to the attorney for the appellee along with the original note? The answers to these questions must be in the negative, I respectfully urge, under the decisions of this court.

Merchants & Manufacturers Bank of Ellisville v. Fox, 165 Miss. 833, 147 So. 789; Stevens v. Dunlap Mercantile Co., 112 Miss. 524, 73 So. 570.

The requirements of section 1671 are mandatory.

Merchants & Manufacturers Bank of Ellisville v. Fox, 165 Miss. 833, 147 So. 789.

Ignorance and mistakes of the clerk do not inure to the benefit of one seeking to probate and establish a claim against the estate of a decedent. The law requires not only that the creditor comply with the requirements of section 1671, but also that he see that the clerk complies with the same. Stevens v. Dunlap Mercantile Company, 112 Miss. 524, 73 So. 570.

After the time allowed by law for the probation and establishment of claims has expired, the chancery court is without authority to make valid by amendment that which was not validly done.

Stevens v. Dunlap Mercantile Company, 112 Miss. 524, 73 So. 570.

C. R. Bolton, of Tupelo, for appellee.

The instant case is one in which a nunc pro tunc order could have been entered had it been necessary because the certificates had really been executed within the time required by law. In the instant case, however, a nunc pro tunc order was unnecessary because the actual certificates were produced before the court. It was not a case of the clerk afterwards undertaking to execute the certificates as was the case in Stevens v. Dunlap, and the case of Merchants and Manufacturers Bank v. Fox, and therefore subject to the condemnation of the rule and not allowed.

Appellants' contention really amounts to the claim that although proper affidavit for probation was filed and the clerk executed proper certificate of probation and allowance and executed proper certificate as to the correctness of the copy of the note left on file, yet, because this certificate as to the copy of the note was separated from the copy that a just and valid claim must be denied. The court below refused to take such a narrow and technical view of the law. There is no law that requires a certificate to remain with the copy of the note left on file.

The creditor was not required to guard his claim in the files of the clerk.

State v. McCollough, 66 A. L. R. 1033; Carothers v. Love, 153 So. 389, 169 Miss. 257; Keiffer Bros. Co. v. Bank of Commerce, 63 So. 189.

The petitioner had the right to expect that the clerk would comply with the law and preserve such papers as were filed with him.

The provisions of the code relative to filing certified copy of the note has to do only with the matter of presentation of the claim to the executor.

Section 1671, Code of 1930.

Argued orally by C. E. Morgan, for appellant, and by C. R. Bolton, for appellee.

OPINION

Griffith, J.

The Bank of Guntown, in liquidation, being the holder of an unpaid note made by appellants' decedent, sent within due time the original note, together with the statutory attached affidavit, to the chancery clerk for probate, allowance, and registration. At the same time, the bank requested that it be permitted to withdraw the note after the clerk had made and retained a certified copy thereof, as required by the statute. In order to facilitate the work of the clerk, the bank sent with its sworn petition for probate, not only the original note, but also a true copy thereof, and on the same sheet of paper on which the note was copied, a full form of certificate was written out, to be executed and retained by the clerk, that the copy furnished was a true and correct copy of the original note.

The clerk admitted the note to probate by the statutory indorsement on the claim, and, after comparing the copy with the original, he executed the certificate that he had verified the copy and found the same to be a true and correct copy of the original; but instead of allowing the certificate to remain intact on the sheet of paper which contained the copy of the note, and instead of retaining in his office both the copy and the certificate, the clerk tore apart the copy of the note and the certificate, and took that part which contained his certificate and at once sent it, together with the original note, back to the bank. The bank on receipt thereof failed to observe that the said certificate was sent back, together with the original note, but filed away, among its private papers, both the note and the certificate where they remained until long after the period for probation had expired.

It will thus be seen that the clerk allowed the original note to be withdrawn, and he retained simply a copy of the note, without anything kept of record by him, and to remain on file in his office, to show as a matter of public record among the papers pertaining to the estate that the original note had been placed before him and that the copy so retained had in fact been officially found by him to be a true and correct copy of the original note. In short, the clerk kept a...