McGrew v. State Bank of Humboldt

• Decision Date: 08 November 1900
• Citation: 84 N.W. 99,60 Neb. 716
• Parties: MCGREW v. STATE BANK OF HUMBOLDT.
• Court: Nebraska Supreme Court

60 Neb. 716

84 N.W. 99

MCGREW

v.STATE BANK OF HUMBOLDT.

Supreme Court of Nebraska.

Nov. 8, 1900.

Syllabus by the Court.

1. An order allowing a claim against an estate on November 15, 1897, held to be a valid judgment as of that date, and the fact that it was not journalized or spread at large upon the probate record until April 27th following does not affect its validity as such judgment from the time of its actual rendition.

2. Held, also, that the order of the probate judge allowing the claim in controversy as a proper demand against the estate was valid and binding, and had the force and effect of a judgment against the estate until appealed from, or, by other proceedings, reversed or vacated in some of the modes prescribed by statute.

3. Held, also, that the judgment of the probate court was not the act of recording the judgment entered on the probate record on April 27th, but that which it considered, adjudged, and decided on November 15th previous, when, in acting upon a matter over which it had authority and jurisdiction, it allowed the claim in controversy.

4. Held, that the judgment having been rendered on November 15, 1897, and the term of court at which it was rendered having expired, the probate court was without authority or jurisdiction to vacate or modify the judgment at its discretion thereafter, and could only act in respect to the matter according to fixed principles of law.

5. Held, also, that, the motion to vacate the judgment having been presented at a term subsequent to its rendition, the court could not properly grant the same, except upon some of the grounds enumerated in the statute, and, none being presented, its action in vacating its former judgment was erroneous.

Error to district court, Gage county; Letton, Judge.

Action by the State Bank of Humboldt against S. W. McGrew, administrator. Judgment allowing plaintiff's claim. Motion by defendant to vacate such allowance, and from its refusal he brings error. Affirmed.B. Frank Neal and H. J. Dobbs, for plaintiff in error.

Isham Reavis, for defendant in error.

HOLCOMB, J.

This cause is submitted on a printed abstract of the record and briefs of counsel. From the record it appears that in the due course of administration of the estate of Alice M. Coleman, deceased, had in the probate court of Gage county, there was filed on the 9th day of October, 1897, a claim against said estate in the form of a promissory note executed by the said Alice M. Coleman. On November 15th the claim was allowed by the probate judge as a proper demand against the estate, the order of allowance being evidenced by the following record of indorsement on the claim filed for allowance: “Allowed for $355.33 this Nov. 15, 1897. M. B. Davis; County Judge.” On the note was the following entry or indorsement: “This Nov. 15, 1897, allowed against the estate of R. W. Coleman, and also Alice M. Coleman. M. B. Davis, County Judge.” There appear from the record presented no proceedings in said estate had prior thereto, and we assume that a proper notice had been given for the filing of claims against the estate, and fixing a day for their allowance and adjustment, and that in pursuance of such notice the claim in controversy was filed and allowed. On March 4th following there was filed in the probate court a motion to set aside the order of allowance of the claim and grant a rehearing. This motion was presented by the plaintiff in error as executor of the estate of Alice M. Coleman, deceased. The motion assigned three grounds as reasons for vacating the judgment: First, that said note was not signed by the said Alice M. Coleman, nor by her authorized to be signed; second, that it was not executed on the faith and credit of the said estate, and was in fact the note of R. W. Coleman, and made for his sole and individual use and benefit, and that said deceased had no interest in the note or benefit therefrom, and as to her and her estate it is fraudulent and void; third, that it is an attempt to bind the estate of the wife for the separate and individual debts of her husband, other than for necessaries, and is within the inhibitions of chapter 53, Comp. St. A hearing was had on the motion on March 11th, which resulted in an order vacating and setting aside the order of allowance; and a hearing on the claim was set for April 6th, and on that day continued to April 27th. On the day set for hearing, objections were interposed by the claimant to the proceedings had under the motion filed to vacate the order of allowance for want of jurisdiction, which were overruled, and upon further hearing the claim was disallowed. Upon error proceedings prosecuted to the district court, the proceedings had in the probate court on the motion to vacate the judgment of allowance were reversed and set aside, and the order of allowance first made reinstated. From the judgment of reversal rendered in the district court, the case is brought here on petition in error for review.

The plaintiff in error bases his argument in favor of a reversal of the judgment of the district court upon the proposition that the judgment of allowance of the claim in controversy was not rendered until April 27th, on the same day the claim was disallowed, and that therefore the probate judge was authorized to vacate and set aside the judgment of allowance; it being at the same term it was rendered. This contention rests upon the enrollment or entry of the judgment of allowance upon the probate records, as shown by the following record made by the probate judge of said county:

“In Re Estate of Alice M. Coleman, Deceased. Claim of State Bank of Humboldt, Nebraska, against the estate of Alice M. Coleman, deceased, was filed October 9, 1897, a copy of which is as follows:

In the County Court of Gage County, Nebraska.

In the Matter of the Estate of A. M. Coleman, Deceased.

In Account with State Bank of Humboldt, Nebraska.

Address, Humboldt, Nebraska.

+-----------------------------------------------------------------------------+
                ¦     ¦                                                        ¦Dr.    ¦Cr.   ¦
                +-----+--------------------------------------------------------+-------+------¦
                ¦Date.¦Description of Claim.                                   ¦Amount.¦Total.¦
                +-----+--------------------------------------------------------+-------+------¦
                ¦     ¦One note, dated Apr. 4, 1897, for due in 90 days, with  ¦       ¦      ¦
                ¦     ¦int. at 10% per annum from maturity, on which interest  ¦       ¦$350  ¦
                ¦     ¦has been paid to Sept. 20, 1897; the same being signed  ¦       ¦00    ¦
                ¦     ¦by R. W. Coleman and A. M. Coleman; copy of note being  ¦       ¦      ¦
                ¦     ¦as follows:                                             ¦       ¦      ¦
                +-----------------------------------------------------------------------------+
                

+-----------------------------------------------------------------------------+
                ¦Payable at the State¦             ¦                                          ¦
                ¦Bank of Humboldt,   ¦$350.00.     ¦Humboldt, Neb., Apr. 14, 1897.            ¦
                ¦Humboldt, Nebraska. ¦             ¦                                          ¦
                +--------------------+--------------------------------------------------------¦
                ¦                    ¦Ninety days after date, we, or either of us, promise to ¦
                ¦

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