KUZMA, ETC. v. PEOPLES TRUST & SAV. BANK
Decision Date | 29 June 1961 |
Docket Number | 286.,No. 19,19 |
Citation | 132 Ind. App. 184,176 N.E.2d 138 |
Parties | KUZMA, BY JOSEPH J. KUZMA, NEXT FRIEND v. PEOPLES TRUST & SAVINGS BANK ETC. |
Court | Indiana Appellate Court |
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John E. Early and Paul F. Arnold, both of Evansville, for appellant.
McCray & Clark and Gaylon L. Clark, Jr., for appellee.
This is a companion case to Cause No. 19285 entitled "Anna M. Kuzma, as Administratrix of the Estate of Rosemary Kuzma, Deceased, v. Peoples Trust & Savings Bank, Boonville, Indiana, as Personal Representative of the Estate of Lysle Eugene Emmons, Deceased," which was consolidated for the purpose of oral argument, and which is decided contemporaneously with this case.
It seems the appellant, Ethel Kuzma, was on February 5, 1955, driving an automobile which was involved in a collision with another car being driven by Lysle E. Emmons. The appellant suffered personal injuries in such collision.
This action was instituted by the filing of a claim against the estate of Lysle E. Emmons, who died on February 6, 1955. There is some variance between the dates used in the brief and those of the record before us as to the actions taken in the court below. In such case we of course must follow the transcript, which imports verity and which shows that Ethel Laura Kuzma, by Joseph J. Kuzma, as her next friend, filed her petition for the appointment of a personal representative for the estate of Lysle E. Emmons on January 12, 1957. The Warrick Circuit Court then appointed the Peoples Trust & Savings Bank Administrator on the 19th day of January, 1957, and the Peoples Trust & Savings Bank filed its oath and qualified as administrator on May 8, 1957, at which time letters were issued by the clerk of the court to the said Peoples Trust & Savings Bank.
Then, on May 15, 1957, appellant's claim was filed against the estate of Mr. Emmons.
A motion to strike was filed against such claim, and the appellant filed an amended claim on January 2, 1958. A demurrer to such claim was filed on February 7, 1958, and after oral argument was held the court sustained the demurrer on September 10, 1958. The appellant refusing to plead over, judgment was entered against her on October 9, 1958, and from such judgment the appellant prosecuted this appeal.
The demurrer assigned as the statutory cause that the claim did not state facts sufficient to constitute a cause of action against the estate.
Appellant asserts that her claim is based upon personal injury to a minor, and under Burns' § 2-605, 1946 Replacement Acts 1881 (Spec. Sess.), ch. 38, § 42, p. 240, which is as follows:
the appellant would have two years after her majority to bring her action. In support of such contention, appellant urges that § 2-605, supra, was first in time, and to hold that it is limited by § 7-801 (d), Burns' 1953 Replacement Acts 1953, ch. 112, § 1401, p. 295,1 which provides:
would be a repeal by implication of § 2-605, supra, and that such repeals by implication are not favored in Indiana.
The appellant further urges that an interpretation of § 7-801 (d), supra, in limiting the appellant's action herein would cause conflict with § 7-107, Burns' 1953 Replacement Acts 1953, ch. 112, § 707, p. 295; 1955, ch. 258, § 4, p. 667, which provides as follows:
In discussing § 7-801, supra, we find the following statement made in 1 Henry's Probate Law and Practice, ch. 13, § 9, at p. 419:
This language has been quoted with approval by this court in the cases of Otolski v. Estate of Nowicki (1958), 129 Ind. App. 492, 158 N.E.2d 296, and Russell, Administrator, etc. v. Moore (1960), 130 Ind. App. 351, 164 N.E.2d 670.
Again referring to 1 Henry's Probate Law and Practice, ch. 13, § 9, at page 420, we find the following reference to section (d) of § 7-801, supra:
It seems apparent that this provision of the statute does not come within the definition of a statute of limitations but rather that of a survival of claims under the condition of filing such claim within the time prescribed. Appellant is attempting to assert a statutory right, and, as stated in The Evansville, etc., Co. et al. v. Winsor, by Next Friend (1897), 148 Ind. 682, at p. 690, 48 N.E. 592:
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State ex rel. Young Metal Products, Inc. v. Lake Superior Court Room No. 5
...Donnella v. Crady (1963), 135 Ind.App. 60, 185 N.E.2d 623, transfer denied 244 Ind. 205, 191 N.E.2d 499; Kuzma v. Peoples Trust, etc. (1961), 132 Ind.App. 184, 176 N.E.2d 138; Lewis v. Est. of Smith, etc. (1959), 130 Ind.App. 390, 162 N.E.2d Where the legislature has by statute afforded a r......
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Donnella v. Crady
...time." The foregoing language has been quoted with approval by this court in several recent cases. See Kuzma v. Peoples Trust & Savings Bank, Boonville (Ind.App.1961) 176 N.E.2d 138; Otolski v. Estate of Nowicki (1959), 129 Ind.App. 492, 158 N.E.2d 296; Russell, Administrator, etc. v. Moore......
- Kuzma v. Peoples Trust and Sav. Bank, Boonville, 19285