McElroy v. Whitney

• Decision Date: 11 June 1913
• Citation: 24 Idaho 210,133 P. 118
• Parties: H. E. MCELROY, Administrator, Respondent, v. MAMIE L. WHITNEY, Administratrix, Appellant
• Court: Idaho Supreme Court

133 P. 118

24 Idaho 210

H. E. MCELROY, Administrator, Respondent, v. MAMIE L. WHITNEY, Administratrix, Appellant

Supreme Court of Idaho

June 11, 1913

APPEAL-MOTION TO DISMISS-FORM OF JUDGMENT-CONSTRUCTION OF STATUTE.

1. Under the provisions of sec. 5474, Rev. Codes, a judgment rendered against an executor or administrator upon a claim for money against the estate of his testator or intestate only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the probate judge, and the judgment must be that the executor or administrator pay in due course of administration the amount ascertained to be due.

2. Where a judgment was entered on the first day of May, 1912 and no appeal was taken therefrom within sixty days from the entry thereof, under the provisions of sec. 4807, Rev. Codes as amended by Session Laws 1911, p. 367, and thereafter, on the 26th day of October, 1912, said judgment was amended by adding thereto the following words, "and that said judgment be paid in due course of administration of the estate of W. G. Whitney, deceased," an appeal taken from such judgment on December 21st, 1912, is too late to have said judgment reviewed on appeal, so far as any errors are concerned alleged to have been made during the trial of said cause, as said amendment made no change in the amount or effect of said judgment.

3. Held, that without such amendment said judgment must be "paid in due course of administration," as provided by said sec. 5474.

4. An order made after a final judgment is an appealable order.

APPEAL from the District Court of the Third Judicial District, in and for Ada County. Hon. Carl A. Davis, Judge.

Action to recover from an administratrix of the estate of a deceased person. Judgment for plaintiff. Motion to dismiss appeal sustained and judgment affirmed.

Appeal dismissed. Costs awarded to the respondent.

N. M Ruick and B. W. Oppenheim, for Appellant.

"The modification of a judgment resulting from a new trial is in effect a new judgment, and an appeal may be taken from the entry of the modified judgment as from the original." (Citing Mann v. Haley, 45 Cal. 63; 2 Hayne on New Trial and Appeal, Rev. ed., p. 1085, sec. 204.) The same rule applies to amended judgments generally.

Even when a judgment has been entered nunc pro tunc as of a prior date, the time to appeal begins to run from the date of the actual entry. (Hayne, New Trial and Appeal, p. 1093, sec 205; Spences v. Troutt, 133 Cal. 605, 65 P. 1083; Bixby v. Bent, 59 Cal. 522; Hayes v. Silver Creek etc. Co., 136 Cal. 238, 68 P. 704; In re Potter's Estate, 141 Cal. 350, 424, 74 P. 986, 75 P. 850.)

If the failure to enter proper judgment in the case at bar resulted from a clerical misprision, counsel would doubtless have requested a nunc pro tunc order. That they did not do so is, we hold, an admission that the error was a substantial one, to be corrected by an application to the court pursuant to sec. 4229 of the codes. (Leonis v. Leffingwell, 126 Cal. 369, 58 P. 940.)

The effect of the judgment is only to establish the claim in the same manner as if it had been allowed by the executor. (Beckett v. Selover, 7 Cal. 215, 229, 68 Am. Dec. 237.)

It is plain from the reading of the statute that the provision relative to payment in due course of administration is an essential part of the judgment, and that a judgment which omits this direction will be modified on appeal, and this is the method adopted in nearly every reported case. (Vance v. Smith, 124 Cal. 219, 56 P. 1031; Moore v. Russell, 133 Cal. 297, 85 Am. St. 166, 65 P. 624.)

Martin & Martin and H. E. McElroy, for Respondent.

If the judgment entered on May 1, 1912, was the final judgment in this action, then it is clear that this appeal should have been taken within sixty days after said date. The motion to correct the judgment was not pending during that time, and might have been made years afterward.

This correction was not one for the purpose of revising and changing the judgment. It was merely a correction to make the judgment conform to the record. (Estate of Schroeder, 46 Cal. 316.)

In the case at bar the amendment was made by the court from the record itself. No new evidence was taken. The court in this action simply added the words to the judgment to make a technical compliance with the statute in regard to the matter. It is even doubtful whether the judgment needed to be amended, and the correction was secured merely to remove any question. (Racouillat v. Sansevain, 32 Cal. 376; Scammon v. Bonslett, 118 Cal. 93, 62 Am. St. 226, 50 P. 272; People v. Greene, 74 Cal. 400, 5 Am. St. 448, 16 P. 197; Hegeler v. Henckell, 27 Cal. 497; Bostwick v. McEvoy, 62 Cal. 502; Wharton v. Harlan, 68 Cal. 422, 9 P. 727; Dreyfuss v. Tompkins, 67 Cal. 339, 7 P. 732.)

In the last case the appeal was taken from the order allowing the correction. The court entertained without question such appeal. (See, also, Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916; Slade v. Burton, 28 N.C. (6 Ired.) 207.)

"While the judgment was against the administrators, as such, the judgment failed to give the statutory direction, that it should be paid in the course of administration." (Vance v. Smith, 124 Cal. 219, 56 P. 1031.) And the court said that those words should be added by the trial court, and ordered such addition to be made from the record in the case. (See, also, In re Willard's Estate, 139 Cal. 504, 73 P. 240, 64 L. R. A. 554; Fay v. Stubenrauch, 141 Cal. 575, 75 P. 174; Barton v. South Jordan etc. Inst., 10 Utah 346, 37 P. 576.)

SULLIVAN, J. Ailshie, C. J., concurs. Stewart, J., did not sit at the hearing or take any part in the decision.

OPINION

SULLIVAN, J.

This is an appeal from a modified or corrected judgment rendered and entered on the 26th of October, 1912. The original judgment was entered on the first day of May, 1912, in favor of the respondent, as administrator of the estate of John G. Whitney and against Mamie L. Whitney, as administratrix of the estate of W. G. Whitney, deceased, for the sum of $ 11,034.07. On October 9, 1912, Hugh E. McElroy, as administrator, moved to have said judgment amended by adding thereto the following: "And that said judgment be paid in due course of administration of the said estate of W. G. Whitney, deceased." Notice of said motion was properly served on counsel for the appellant and a hearing thereof was had before the court on October 26, 1912, and said motion granted and the court directed the clerk to make said amendment by interlineation, which was accordingly done and the clerk added to the last sentence of said judgment the following words: "And that said judgment be paid in due course of administration of the said estate of W. G. Whitney, deceased."

This case was before this court on a former appeal, and the judgment reversed and the cause remanded for further proceedings. (See McElroy v. Whitney, 12 Idaho 512, 88 P. 349.)

In limine, a motion was made to dismiss this appeal and to strike out certain portions of the transcript. The ground of the motion to dismiss the appeal is that the appeal was not taken within the time provided by law, to wit, within sixty days after the rendition of judgment.

The judgment as entered on the first day of May, 1912, provided as follows: "That the plaintiff, Hugh E. McElroy, as administrator of the estate of John G. Whitney, deceased, do have and recover of and from the said defendant, Mamie L. Whitney, as administratrix of the estate of W. G. Whitney deceased, the sum of $ 11,034.07, and his costs and disbursements incurred herein, taxed at $ 731.15."

This is a judgment in favor of an administrator against an administratrix. The judgment is not...