McKinzie v. Hill
| Decision Date | 31 January 1873 |
| Parties | MARTHA MCKINZIE, Admx. of ALEX. MCKINZIE, deceased, Appellant, v. H. L. W. HILL, Admr. of WM. W. GAY, deceased, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Lawrence Probate Court.
Nathan Bray, for Appellant.
I. If ten years had not elapsed between the maturity of the note and the death of the maker, or grant of the letters of administration, then it was not barred by the ten years statute, for as soon as Gay died, the statute ceased to run until an administration was had on his estate. The plaintiff certainly had the right to prove facts which would take the case out of the statute.
II. The appellant claims that she had the right to prove that the courts of the country were closed by the civil war, by showing a state of facts, which would prevent the statute of limitations from running. (See cases already cited in Wallace Reports.)
But appellant also claims under the testimony in this case, the judgment should have been for the plaintiff.
The record shows that the note was due Jan. 1st, 1859, and that notice of the presentation of the demand was served on the Administrator on the 14th day of July, 1868, less than ten years from the maturity of the note.
H. Brumback, for Respondent.
I. The two years statute does not have the effect of superseding or extending the ten years statute.
II. The court properly excluded testimony to show that Lawrence County was within the rebel lines for six months in 1861 and 1862, and also that no Circuit Court was held in said county from Feb. 1861 to May 1862. (Bank of State of Alabama vs. Dalton, 9 How., 522; Ang on Lim., 488; Richardson, Admr., vs. Harrison, Admx., 36 Mo., 96.)
This was a proceeding originally instituted in the Probate Court of Lawrence County, to obtain the allowance of a demand against the estate of the defendant's intestate. The defense was the statute of limitations. The demand consisted of a promissory note for two hundred dollars, dated December 31, 1858, and due one day after the date thereof. The record shows that notice was given to the administrator on the 14th day of July, 1868, that the note would be presented for allowance at the next October term of the Probate Court. But at that term the plaintiff did not appear, no presentation was made, and no steps were taken in the matter. A new notice was then given, that the demand would be presented for allowance at the April term, 1869, which was served on the 2d day of April in the same year, at which term the cause was submitted to the court and judgment was rendered for the defendant. On appeal to the Circuit Court, the plaintiff offered to introduce evidence to prove that the notices were served, and that the action was commenced within two years after the granting of letters of administration on the estate of the defendant's intestate, and then offered evidence to show that Lawrence County was in the rebel lines for six months in 1861,-62, and that on account of the rebellion, no Circuit Court was held in that county from February 1861, till May 1862, which evidence the court excluded and the plaintiff excepted.
Plaintiff then asked for declarations of law founded on the excluded testimony which the court refused to give, and then found for the defendant-- thus affirming the judgment of the Probate Court.
A motion for a new trial was duly filed, the reasons assigned being that the court erred in refusing the declarations of law, and that it also committed error in excluding competent testimony.
There was no error in refusing to give the instructions, for after the evidence was ruled out, there was nothing on which to base them.
The only question then before us is, whether the evidence which the court rejected was proper to be admitted in the cause.
At what time the letters of administration were granted to the defendant on the estate of the maker of the note is not shown. The doctrine established by this court is, that the statute of limitations does not run in favor of an estate during the time there is no administration; that it only commences running from the grant of letters. (Polk vs. Allen, 19 Mo., 467; McDonald vs. Walton, 2 Mo., 43.)
But, here the offer was to prove that the claim was exhibited within two years after the granting of letters. That is the time allowed by the statute for proving up claims against an estate, but if the demand is barred by the general provisions of the statute before it is presented, it was never intended to graft this on the statute as an extension of time.
The first notice must be wholly disregarded, as no attempt was made to proceed under it, and the second notice was not given till after ten years had gone by, and the statute therefore is a complete protection, unless we exclude the time in which it is alleged the Circuit Court was suspended in consequence of the rebellion.
Richardson, administrator, vs. Harrison, administratrix (36 Mo., 96), was a case similar to this, and we there held, that proof that the civil law was snspended on account of the war, during a portion of the period, would not extend the time for presenting the claim. The court there remarked that it did not appear that the civil law was suspended for nearly a year after the statute had commenced running; nor did it appear that the plaintiff's remedy was ever suspended, for he might still have served a notice on the executrix, and that would have had the effect of saving the bar.
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...... [c]ommercial intercourse and correspondence between them were prohibited ... by the accepted doctrines of public law”); McKinzie v. Hill, 51 Mo. 303, 307 (1873) (“[T]he principles [regarding the duty of “total non-intercourse between the belligerents”] have no application to the present......
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Ali Hamza Ahmad Suliman Al Bahlul v. United States, 11–1324.
...[c]ommercial intercourse and correspondence between them were prohibited ... by the accepted doctrines of public law”); McKinzie v. Hill, 51 Mo. 303, 307 (1873) (“[T]he principles [regarding the duty of “total non-intercourse between the belligerents”] have no application to the present cas......
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Al Bahlul v. United States
...... [c]ommercial intercourse and correspondence between them were prohibited ... by the accepted doctrines of public law”); McKinzie v. Hill, 51 Mo. 303, 307 (1873) (“[T]he principles [regarding the duty of “total non-intercourse between the belligerents”] have no application to the present......
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Knisely v. Leathe
...hand with that imposed by the general statute. When a demand is barred by the latter it cannot be a living one through the former. [McKinzie v. Hill, supra.] this cause of action accrued nine years before the issue to defendant of letters testamentary it would not wait to be barred by the s......