Melton v. Martin

• Decision Date: 04 May 1903
• Citation: 72 P. 414,28 Mont. 150
• Parties: MELTON v. MARTIN.
• Court: Montana Supreme Court

72 P. 414

28 Mont. 150

MELTON v. MARTIN.

Supreme Court of Montana

May 4, 1903

Commissioners' Opinion. Appeal from District Court, Gallatin County; F. K Armstrong, Judge.

Action by John A. Melton against J. P. Martin, administrator of James Dartis. From a judgment for plaintiff, defendant appeals. Reversed.

Pierce & Pierce, for appellant.

John A Luce, for respondent.

CLAYBERG C. C.

This is an appeal from a judgment rendered against appellant, as administrator of the estate of James Dartis, deceased, upon a claim of respondent against said estate for moneys alleged to have been paid to Dartis in his lifetime under a mistake. It appears from the complaint that plaintiff presented his claim to the defendant administrator March 8, 1899. The answer alleges that the first publication of notice to creditors was on February 9, 1898; that the value of the estate exceeded $10,000; and that plaintiff did not exhibit his claim "within ten months after the date of the first publication of said notice, nor was it made to appear at any time or at all, by the affidavit of claimant or at all, to the satisfaction of this court or the judge thereof, that the plaintiff had no notice of the time allowed by said notice for the presentation of claims against said estate by reason of being out of the state or otherwise." This allegation was not denied by the replication, and therefore stands admitted. The case was tried upon an agreed statement of facts and "facts admitted by the pleadings." The 10 months allowed by law after the first publication of notice to creditors had elapsed long before the claim was presented. Under section 2603, Code Civ. Proc., all claims must be presented within the time limited in the notice or they are barred forever, except in cases when "it is made to appear by the affidavit of the claimant to the satisfaction of the court or judge that the claimant had no notice as provided in this title, by reason of being out of the state." It is admitted, as above stated, that no proof was adduced which would bring this claim within the above-recited exception. Plaintiff, however, attempted to excuse noncompliance with this statute on the ground that the money had been paid by mistake, and that he did not discover this mistake until after the 10 months had expired. We are not satisfied from the pleadings and statement of facts that a mistake ever existed, and, if it did, that plaintiff should not...