Lanier v. Irvine
| Decision Date | 28 August 1877 |
| Citation | 24 Minn. 116 |
| Parties | Lucius L. Lanier v. John R. Irvine and others |
| Court | Minnesota Supreme Court |
[Syllabus Material]
This suit was brought under an order of the probate judge for the county of Nicollet, dated July 7, 1871, upon an administrator's bond, running to the probate judge of the said county, for the use of the heirs and creditors of the estate of W E. Manro, deceased, and executed July 5, 1860, by George W. Manro as principal, and John R. Irvine and W. A Gorman as sureties.
The claim upon which the action was based was allowed by commissioners appointed by the judge of the said court, who reported "that we did, within six months from our ap-appointment as such commissioners, appoint convenient times and places where and when we should meet for the purpose of examining and allowing claims; that we gave notice of said times and places of our meetings, and of the time limited for the creditors to present their claims, * * * * by publishing the said notice in the Minnesota Statesman, a weekly newspaper printed and published in the town of St Peter."
The case was tried in the district court for Ramsey county, before Simons, J., without a jury, and judgment having been entered for the plaintiff the defendants appealed.
Order affirmed.
Davis, O'Brien & Wilson, for appellants.
The court erred in denying the defendants' motion to substitute the personal representatives of Gorman. Gen. St. c. 66, §§ 36, 298. The action should also have been brought in the name of the probate judge, (Comp. St. c. 47,) because the statute now in force (Gen. St. c. 55) is neither by fair intendment or express terms retrospective, and would be unconstitutional if it were accorded that effect. The decree upon which this action is founded is also void, because it appears that the commissioners had no jurisdiction. Bradley v. Ward, 58 N.Y. 401; Wood v. Myrick, 16 Minn. 494. Again, the extension of time granted to the administrator, without notice to the sureties, released this defendant. Lamonte v. Ward, 36 Wis. 562; Reese v. United States, 9 Wall. 13; United States v. Horton, 2 Dill. 94; Mullakin v The State, 7 Blackf. 77: Wappello v. Bigham, 10 Iowa 39; Huey v. Pinney, 5 Minn. 240, (310;) Bigelow v. Bridge, 8 Mass. 274; Niblo v. Clark, 3 Wend. 24; 2 Am. Lead. Cas. 271, 293. The decree of distribution is likewise void for want of notice, (Wood v. Myrick, 16 Minn. 494,) and because it affirmatively appears that the funeral expenses had not been paid at the time it was made. Comp. St. c. 47, § 2. Moreover, this suit is barred by the statute of limitations. Comp. St. c. 44, § 43, c. 47, § 5. And, finally, the record in evidence is not sufficient to bind the defendants as sureties, because there should have been proof aliunde that the administrator had assets. Jackson v. Griswold, 4 Hill 522; King v. Norman, 4 C. B. 883.
Geo. L. Otis, for respondent.
There was no error in the order granting the plaintiff the right to proceed against the surviving defendant. Gen. St. c. 66, § 36; New York Code, c. 4, § 121; 1 Wait's Prac. 154; Gardner v. Walker, 22 How. Pr. 405; Bank v. Trott, 27 N.Y. 633; McVean v. Scott, 46 Barb. 379; Fine v. Brighter, 3 Abb. N. S. 385. This action is also brought in the name of the proper party. Until the revision of 1866 (Gen. St. c. 56) the creditor brought suit in the name of the probate judge, (Rev. St. c. 60, Comp. St. c. 47,) but since that time he is authorized to sue in his own name. The substantial rights of the creditor, however, were not affected by the change, which merely dealt with the remedy, and permitted the substitution of the name of a real for that of a nominal plaintiff. Wood v. Myrick, 16 Minn. 494. Neither was the order of distribution upon which this action is founded void, because notice was not essential to the jurisdiction of the commissioners over claims actually presented, and it is not requisite that the fact of their jurisdiction should be affirmatively shown in this suit. And even if this order could not be made until the funeral expenses were paid, although not such final order as is contemplated by the statute, (Comp. St. c. 47, § 2,) still payment will be presumed in this instance in favor of such order. Notice of the order was likewise not requisite because it did not relate to a final distribution of the estate, (Comp. St. c. 47, §§ 2, 71,) and in any event would have been presumed. Neither did the extension of time granted to the administrator release the sureties; because the time for paying the claim in controversy was not extended; because, if there was any extension, it was made under the law in force at the time the bond was executed; and because, if the extension was illegal for want of notice or otherwise, it was a mere nullity, and there was therefore no extension in fact. It has already been determined that this action was not barred by the statute, (Lanier v. Irvine, 21 Minn. 447) and under the decision of Wood v. Myrick (16 Minn. 494) there is no room for argument on this branch of the case.
This action was brought upon an administrator's bond, running to the judge of probate, executed by Manro, the administrator, as principal, and Irvine and Gorman as sureties. Irvine and Gorman answered jointly. Gorman having died before the trial, the court denied an application to have his representatives substituted as co-defendants, and on plaintiff's application made an order granting him the right to proceed against Irvine alone.
On the trial the appointment and qualifying of Manro as administrator, the appointment of commissioners to audit claims, their report filed allowing certain claims, among them the claim upon which this action is based, the petition of the administrator showing the amount of money in his hands for distribution among the creditors, an order directing him to pay certain amounts to the several creditors, by which he was to pay upon the claim on which this action is based the sum of $ 535.07, a demand for and non-payment thereof, and an order of the probate judge directing plaintiff to bring suit on the bond, were established.
The letters of administration were granted July 11, 1860. The order for distribution among the creditors was made June 19, 1863. On November 5, 1863 an order was made allowing the administrator an extension of time until April 11, 1864, in which to render an account of his administration of the estate. This order was thus granted after three years, from the issuing of the letters of administration, had expired.
The various reports, orders, and other transactions after the issuance of the letters, were without actual notice to the sureties on the bond. The decree or order of distribution among creditors does not appear to have been made upon any notice.
The errors assigned by defendant are: First, in denying the motion for substitution of Gorman's representatives, and in allowing the action to proceed against Irvine alone; second, that the action is not properly brought in the name of the creditor, but should have been brought in the name of the judge of probate; third, that the decree of distribution is void because the commissioners did not give sufficient notice of the times and places of their meetings, etc.; fourth, that the extension of time by order of November 6, 1863, released the sureties; fifth, the decree of distribution is void for want of notice, and because it appears the funeral expenses had not been paid; sixth, the suit is barred by the statute of limitations.
The bond was joint and several, and the action might originally have been brought against all the obligors jointly, or any one of...
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