Murray v. Johnson
| Decision Date | 31 January 1912 |
| Citation | 134 N.W. 206,28 S.D. 571 |
| Parties | MURRAY v. JOHNSON. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hyde County; John F. Hughes, Judge.
Action by Alfred Murray, administrator, against G. F. Johnson, administrator. From a judgment for plaintiff, defendant appeals. Reversed and remanded.M. C. Cunningham and Gaffy, Stephens & Fuller, for appellant.
Boucher, O'Brien, Johnson & Auldridge, for respondent.
Appeal from the circuit court of Hyde county.
Barney Murray and Clara A. Johnson were father and daughter. Barney Murray died, and Alfred Murray, plaintiff and respondent in this action, was appointed administrator of his estate. Thereafter Clara A. Johnson died, and Garrett F. Johnson, defendant and appellant, was appointed administrator of her estate. Alfred Murray, as administrator, brought this action in the circuit court of Hyde county against Garrett F. Johnson, as administrator of the estate of Clara A. Johnson, to recover the sum of $2,700, alleged to have been loaned to her by Barney Murray, her father, during his lifetime. The answer is a general denial. Upon the trial, a verdict was rendered for plaintiff in the sum of $1,200, upon which judgment was entered, and from the judgment, and an order overruling a motion for a new trial, defendant appeals.
Upon the trial, one R. V. Rockwell was called as a witness on behalf of plaintiff. A written document, marked “Exhibit L” for identification, purporting to be a claim for the sum of $2,700 against the estate of Clara A. Johnson, was presented to this witness, who testified that he was clerk of courts of Hyde county, and that Exhibit L is a part of the records of the probate court of Hyde county, in the matter of the estate of Clara A. Johnson, deceased. Upon this exhibit was indorsed the following:
[1] Defendant objected to the introduction of this exhibit as not the best evidence, and no foundation laid, which objection was overruled, and this ruling, specified as error in the motion for a new trial, is properly assigned as error upon this appeal.
[2] Respondent in his brief questions the sufficiency of many of appellant's assignments of error, but, in the view we take of this case, we deem it unnecessary to consider these objections. The record and assignment of error are sufficient to present the question of the competency of Exhibit L as evidence. Under the provisions of the Probate Code, no action can be maintained against an executor or administrator upon a claim against the estate of the decedent until the claim has been first presented to and rejected by the administrator, either by operation of the statute, or by the written rejection of the executor or administrator indorsed thereon. Section 178 of the Probate Court provides: “No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator.” Exhibit L could have been competent as evidence for no purpose, other than to prove the presentation to and rejection of the claim by the administrator.
[3] No proof of the signature of the administrator, purporting to be attached to the rejection indorsed on Exhibit L, was offered by plaintiff; he apparently relying upon the evidence of the clerk of court that Exhibit L is “a record of the probate court in the estate of Clara A. Johnson, deceased,” as sufficient proof thereof. Section 175 of the Probate Court requires that every claim allowed by the executor or administrator and approved by the judge, or a copy thereof, within 30 days thereafter, shall be filed in the county court. But the statute...
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