Metz v. People

• Decision Date: 11 March 1895
• Parties: METZ et al. v. PEOPLE, to Use of REID et al. [1]
• Court: Colorado Court of Appeals

40 P. 51

6 Colo.App. 57

METZ et al. v. PEOPLE, to Use of REID et al. ^[1]

Court of Appeals of Colorado

March 11, 1895

Appeal from district court, Arapahoe county.

Action by the people of the state of Colorado, for the use of Simon Reid and others, against Rachel Metz, administratrix of the estate of Richard Metz, deceased, and another, to recover on an administrator's bond. From a judgment for plaintiffs defendants appeal. Reversed.

Fillius & Davis, for appellants.

Reuben E. Robinson, for appellees.

BISSELL P.J.

This suit against the sureties of the administrator of Newman Metz, to compel them to pay a judgment alleged to have been obtained against the decedent, has resulted in a record which abounds in legal informalities and some very significant errors. In March, 1891, Henry Metz, who was the father of Newman, filed a petition in the county court wherein he stated the death of his son, the estimated value of the personal estate, the absence of wife or children, and prayed an appointment as administrator. The petition was granted. He filed a bond in the sum of $1,000 conditioned according to the statute, and letters of administration were issued. The bond was signed by Richard Metz and M. Hyman as sureties. Subsequently the administrator published a statutory notice to creditors, requiring them to present their claims at the May term of the county court in Arapahoe county on the second Monday of May. Reid, Murdoch &amp Co., who are the appellees, took no steps under the advertisement. In the July following they filed their claim in the county court, but neither gave, nor undertook to give any notice to the administrator of their proceeding. The claim, as filed and proved in this suit, was simply a transcript of the judgment docket. This transcript contained nothing but the title of the case; its number; a statement of the judgment debtors, H. Metz and Newman Metz, partners as H. Metz & Son; the names of the judgment creditors, Simon Reid et al.; and the amount of the judgment, which was about $740. This account was verified in Cook county, Ill., by the affidavit of Simon Reid. The affidavit simply stated that the annexed account was just and unpaid. It appeared by the testimony of the claimants' attorney that on some day, but whether before or after the claim was filed is not made manifest, an inquiry was made at the residence of Henry Metz as to his whereabouts. The attorney was informed by some one that the administrator had gone to Chicago, and was probably living there. It was conceded the administrator did not file an inventory as required by section 3557 of the General Statutes of 1883. During the course of the proceedings, Richard Metz, one of the sureties, died. Thereupon the plaintiffs' attorney moved to substitute Rachel Metz as his administratrix. No objection was interposed, and an order was entered making Rachel Metz a party. When the case was submitted, the jury were directed to find for the plaintiff such damages as they might conclude he had sustained by reason of the administrator's failure to file an inventory. They promptly found a verdict for a sum which happens to be the exact equivalent of the estimated value of the personal property according to the administrator's petition. There was no evidence tending to prove that the administrator ever received any money, personal property, or estate of any description which belonged to the decedent. After the rendition of the verdict, judgment was entered against both Rachel Metz and M. Hyman for the amount of the penalty of the bond. The right to collect was limited to the damages assessed by the jury. The entry contained no reference to the capacity in which Rachel Metz defended, and, so far as concerns its terms, execution might go against her personally as well as against Hyman, the cosurety.

The whole theory of the plaintiffs' case seems to be that the sureties on the administrator's bond can be held for the benefit of any creditor of the estate on the simple proof of a failure of the administrator to file his inventory. There may be some little basis for the contention, because of the stringent provisions in sections 3632 and 3633 of the General Statutes of 1883. This legislation permits a recovery on an administrator's bond by any person who may be injured by the conduct of the representative. The enactment is a very broad one, and, in general, provides that any violation of the provisions of the chapter shall be treated as a devastavit, and shall entitle the party to maintain his suit. Even though this be conceded to be true in its broad scope the deduction which counsel makes, that since, on proof of a devastavit, the common law made the administrator liable for all claims which the estate owed, therefore he is liable under this statute, is a non sequitur in its application to proceedings under our statute. Without specific reference to the sections, it may be said that chapter 95 of our General Statutes has provided a plan for the management of the affairs of the estates of deceased persons. Claims against an estate must be filed in the county court, and they stand in a certain relative order, and are entitled in that order to priority of payment. It is quite as necessary that the alleged creditor should file his claim with the county court, and have it allowed, or a judgment passed upon it, as it is that the administrator should do the things prescribed. The non-claim feature of the statute has received a very rigid construction. It was recently construed by the supreme court in the case of Reid v. Sullivan, 39 P. 338, at the last December term, though that case does not touch this particular feature of it. Reasoning by analogy from the doctrine expressed in that decision in an evidently well-considered opinion by Chief Justice Hayt, it is manifest the creditor must file his claim, and have it allowed in order to preserve his rights. If he fails, he will be barred from any share in the distribution, and this whether his claim is secured or unsecured. In the present suit the plaintiffs proved the filing of a claim. They did not file it at the time designated by the administrator in his notice, nor did they appear then and ask to have it allowed. They had the right to file it subsequently, but then they must give notice to the administrator, and have their debt passed on. The absence of the administrator, if it were proved,--and there was no evidence of this fact,--does not excuse the creditor from procuring an allowance of his claim. The necessity to obtain an adjudication respecting these claims is apparent from the general...