Marston v. Denton

• Court: Arizona Supreme Court
• Writing for the Court: McALISTER, C.J.
• Citation: Marston v. Denton, 60 Ariz. 178, 134 P.2d 158 (Ariz. 1943)
• Decision Date: 08 February 1943
• Docket Number: Civil 4496
• Parties: C. P. MARSTON, Appellant, v. ROBERT DENTON, Administrator of the Estate of W. A. Young, Deceased, Appellee

134 P.2d 158

60 Ariz. 178

C. P. MARSTON, Appellant, v. ROBERT DENTON, Administrator of the Estate of W. A. Young, Deceased, Appellee

Civil No. 4496

Supreme Court of Arizona

February 8, 1943

APPEAL from a judgment of the Superior Court of the County of Pinal. H. G. Richardson, Judge. Reversed and remanded.

Mr Burt H. Clingan and Mr. Ross F. Jones, for Appellant and Mr Leon S. Jacobs, of Counsel.

Mr Robert Denton, Appellee for Himself.

OPINION

McALISTER, C.J.

C. P. Marston brought an action against Robert Denton, as administrator of the estate of W. A. Young, deceased, to recover $2370 claimed to be due him upon a promissory note.

The complaint alleges that on January 25, 1935, W. A. Young made a promissory note payable to Helen Eaton Marston, wife of plaintiff, for $7,500, together with a chattel mortgage securing the same, and that he delivered both the note and mortgage to plaintiff and his wife, who that day filed the same in the office of the county recorder of Pinal County, Arizona, where they appear of record in Book 6, page 395, Chattel Mortgages, that plaintiff and wife are the legal owners and holders of said note and mortgage; "that no part of said note has been paid and that there is owing on said note and mortgage the sum of Two Thousand Three Hundred Seventy and no/100 Dollars ($2370.00)"; that on the 28th day of April, 1940, said W. A. Young, then a resident of Pinal County, died intestate and thereafter defendant was appointed administrator of his estate; that he duly qualified and received letters of administration; that he caused notice to creditors to be published requiring all persons having claims against the estate to present them to the administrator within ten months after the first publication of the notice, which was on June 7, 1940; that within this period the plaintiff presented to the defendant his verified claim for allowance, but that said claim, a copy of which was attached to and made a part of the complaint, was, by the defendant, disallowed and rejected on April 8, 1941; that this is the claim upon which this action is founded. The prayer was for judgment against defendant as administrator of the estate of W. A. Young, deceased, in the sum of $2370, payable out of the estate in due course of administration.

The following is a copy of the creditor's claim presented to the administrator and by him rejected:

"IN THE SUPERIOR COURT OF PINAL COUNTY, STATE OF ARIZONA

"In the Matter of the Estate of W. A. YOUNG, Deceased.

CREDITOR'S CLAIM.

"The undersigned, Creditor of W. A. Young, deceased, presents claim against the estate of said deceased, with the necessary vouchers for approval, as follows, to-wit:

"Estate of W. A. Young, Deceased.

"To C. P. Marston, Dr.

1941

Jan. 21

Moneys had and received by W. A.

Young from C. P. Marston from

April 3rd, 1934, to January 25th,

1935

$2370.00

"Secured by chattel mortgage filed

January 25, 1935, in Book No. 6 of

Chattel Mortgages, at Page 395, in

the office of the Recorder of Pinal

County, Arizona.

"STATE OF ARIZONA "COUNTY OF MARICOPA

"C. P. Marston, whose foregoing claim is herewith presented to the Administrator of the estate of said deceased, being duly sworn, says that the amount thereof, to-wit, the sum of Twenty-three hundred seventy ($2370.00) Dollars... is justly due to the said claimant, that no payments have been made thereon which are not credited and that there are no offsets to the same to the knowledge of said claimant.

"C. P. Marston

"Subscribed and sworn to before me,this 16th day of January, 1941.

"(Seal)

Ellen M. Lebert,

"Notary Public.

"My commission expires February 3, 1941."

Endorsed on back:

"In the SUPERIOR COURT of Pinal County, State of Arizona

In the Matter of the Estate of W. A. YOUNG, Deceased.

Claim of C. P. Marston For $2370.00

The within claim presented to ROBERT DENTON Administrator of said deceased this day of , 19

Allowed and approved for $ this day of , 19

Superior Judge.

The within claim rejected this 8 day of April, 1941 Robert Denton, Admr."

The defendant admitted in his answer that the foregoing is a true copy of the claim rejected by him, but denied that the action was founded upon it. He admitted also that the chattel mortgage, which was on file and recorded in the office of the county recorder of Pinal County, was signed by W. A. Young on January 25, 1935, but denied that it was delivered by W. A. Young to plaintiff and his wife, that it was given to secure the promissory note described in the complaint, or the payment of moneys had and received by Young from plaintiff, C. P. Marston, from April 3, 1934, to January 25, 1935, as set forth in the foregoing creditor's claim, that any consideration passed from plaintiff to deceased for it.

He further avers that plaintiff did not present to defendant for allowance a claim for the debt or cause of action alleged and sued upon in this action, nor any claim except the one a copy of which was attached to his complaint, and that he did not present with this claim a copy of the promissory note described in his complaint or of any contract or promise in writing, signed by Young, for the payment of money to him or his wife.

Some time after the answer was filed, the defendant moved that certain defenses, set up therein, be heard and determined before the trial and that the action be dismissed upon the ground that the plaintiff did not first present to defendant for allowance a claim for the demand sued upon in this case before commencing action. At the hearing on this motion counsel stipulated that a certified copy of the chattel mortgage referred to in the claim and in the complaint might be made a part of the record with the same effect it would have had if it had been attached to the claim itself. Thereupon the motion to dismiss was granted and it is this order and judgment the plaintiff has brought here for review.

The only assignment is that the court erred in dismissing the action upon the ground "that there was no suit brought upon a claim which had been heretofore presented to the administrator." The requirement of the statute, sections 38-1007 and 38-1008, Arizona Code 1939, is that no action shall be maintained on a creditor's claim against an estate, unless it has been first presented to and rejected by the administrator, except one to enforce a mortgage or lien against the property of the estate subject thereto. The position of the defendant is that the plaintiff presented to the administrator a claim for $2370 "for money had and received" by Young from him from April 3, 1934, to January 25, 1935, while his action is one for $2370 due on a promissory note for $7500, executed by Young on January 25, 1935, to Helen Eaton Marston. In other words, the creditor's claim for "money had and received" is so different from a creditor's claim for money due on the promissory note upon which the action is really based that it is in fact an action upon a claim that was never presented to and rejected by the administrator and, therefore, cannot be maintained. In support of his contention defendant cites: Kunselman v. Southern Pacific R. Co., 33 Ariz. 250, 263 P. 939; Wilkes v. Cornelius, 21 Or. 348, 28 P. 135; McGrath v. Carroll, 110 Cal. 79, 42 P. 466; Swedish-American National Bank v. Dickinson, 6 N.D. 222, 69 N.W. 455, 49 L.R.A. 285; Proto v. Chenoweth, 33 Ariz. 261, 263 P. 943.

It is true the claim rejected states that it is for $2370 for money had and received, but it will be observed it also states that the money so had and received is "secured by chattel mortgage filed January 25, 1935, in Book 6 of Chattel Mortgages, at Page 395, in the office of the Recorder of Pinal County, Arizona," this being the same chattel mortgage described in the complaint as securing the promissory not executed by W. A. Young on January 25, 1935 to Helen Eaton Marston for $7500, $2370 of which was then owing. A reading of the mortgage discloses that it makes no reference to a promissory note but was given to secure $7500 for which the deceased acknowledged he was justly indebted to the plaintiff and his wife, and which the plaintiff contends he promised in the following language...