Nutall's Adm'r v. Brannin's Ex'rs

• Decision Date: 17 April 1868
• Citation: 68 Ky. 11
• Parties: Nutall's adm'r v. Brannin's ex'rs.
• Court: Kentucky Court of Appeals

68 Ky. 11

Nutall's adm'r v. Brannin's ex'rs.

Court of Appeals of Kentucky.

April 17, 1868

1. The answer of the administrator alleged that the plaintiffs did not, before the commencement of their action, present the debt claimed by them to be owing by his intestate, and demand the same, accompanied by the affidavits required by law, and asked a dismissal of the action on that ground. After filing his answer at a subsequent term of the court, the administrator obtained a rule upon the plaintiffs to exhibit the evidence that they had made a demand of the claim set up with the proper affidavits required by law. The plaintiffs having made an insufficient response to the rule, it was discharged by the circuit court, and judgment rendered after trial. On appeal, the response is held to be insufficient the judgment reversed, and the action ordered to be dismissed.

2. Having laid the proper foundation in his answer, the administrator may, at any time before trial, have a rule against the plaintiff to exhibit the evidence that he had made a demand of the claim set up, with the proper affidavits required by law, and on the plaintiff's failure to show a compliance with the requirements of the law in this respect the petition should be dismissed. (Revised Statutes secs. 35, 36, 38, chap. 37; Civil Code, sec. 473.)

3. An action by a surety in a note or bond, for money alleged to have been paid thereon by him for the benefit of his principal, is an action on account for the money so alleged to have been paid, and not an action on the note or bond itself. Such action being against a personal representative, the affidavits required by law should be made to the account. Such affidavits to the note or bond are insufficient. The note or bond is not the foundation of the action, but the action is upon the implied promise raised by law that the principal should refund the amount paid by his surety.

4. As the debt claimed was nothing more than an account, it was the claimant's duty, before he commenced his action against the personal representative, to have demanded payment, and to have accompanied his demand with proof of the account, as well as with his own affidavit, as was required before the passage of the acts above cited. An affidavit of a competent witness must accompany the account, that affiant knows the same to be just and correct. (Trabue's ex'r vs. Harris, 1 Met., 597.)

5. A witness may discharge himself generally on his voire dire, without the production of documentary proof. In this case the circuit court properly permitted a witness to testify without producing the will of his father to show he had no interest in his estate.

6. Proof of the loss of a letter --that witness " had delivered the letter to one of his attorneys, who had it the last time he saw it; that the attorney said he could not find it, and that it was lost." It not being suggested that the attorney was not living, and the attorney not being called on to show what had become of the letter, it was not sufficiently accounted for to admit secondary evidence of its contents.

7. APPLICATION OF CREDITS ON PAYMENTS.--If the debtor owed the creditor more than one debt when he made a payment, he had a right to direct on which debt the credit should be entered; and if he failed to exercise that right, then the creditor had the right to elect on which debt he would place it; but if he had not placed the credit on either debt, and there was no evidence that he had exercised that right, it was erroneous in the circuit court to instruct the jury that they had a right, in the absence of any evidence of that fact, to apply it as they pleased. Such instruction made the jury judges of the law. It was the duty of the court to direct to what debt the credit should be then applied.

APPEAL FROM OLDHAM CIRCUIT COURT.

JOHN M. HARLAN, I. N. WEBB, and JOHN RODMAN, For Appellant,

CITED--

Revised Statutes, 1 Stanton, 509-10-11.

Civil Code, section 473; 1 Met., 24.

1 Greenleaf's Ev., secs. 88, 560, and note.

PRYOR & BARBOUR, and T. N. & D. W. LINDSEY, For Appellees,

CITED--

Revised Statutes, 1 Stanton, 509.

1 Greenleaf's Ev., sec. 95.

Civil Code, secs. 674, 161, 896.

OPINION

PETERS JUDGE:

In March, 1864, appellees, executors of D. Brannin, brought an action on three several promissory notes executed by E. F. Nutall, deceased, to their testator--one on the 5th of April, 1855, and the other two on the 7th of the same month and year, amounting in the aggregate to one thousand one hundred and twenty-nine dollars and fifty-eight cents, against John C. McCreary, his administrator.

On the 10th day of December, 1864, while the first-named action was pending, they brought another action against the same defendant, alleging that on the 6th of November, 1848, defendant's intestate executed a bond to Henry Radford, commissioner of the Shelby circuit court, for six hundred dollars, due four months after date, with their intestate as his surety; that after the maturity of said bond, Nutall failed to pay the same; that their testator, as his surety, paid to the said court's receiver the amount of said bond with the accrued interest, and that Nutall had never refunded the amount thus paid; and they sought judgment for the sum alleged to have been paid on said bond as the surety of said intestate.

In the 1st paragraph of his answer the defendant alleges that the plaintiffs did not, before the commencement of their action, present the debt claimed by them to be owing by his intestate, and demand the same, accompanied by the affidavits required by law, and asked a dismissal of the action on that ground. Lapse of time, payment, and the statute of limitations, were pleaded in bar of the action. These defenses in bar were relied upon in the other action; and the two were consolidated, and heard together as one action, by agreement of the parties; and a verdict and judgment having been rendered against the administrator of Nutall, he has appealed to this court.

At the April term, 1866, of the court, appellant obtained a rule upon appellees to exhibit the evidence, that they had made a demand of the claim set up in the last action, accompanied with the proper affidavits, as required by law. In response to the rule, A. O. Brannin, one of the executors, filed his affidavit, in which he states that to the claim was appended the affidavit of Culvin Sanders, " in which he stated that the note filed with the petition was fully paid off, was just AMT.; that it was paid off by Daniel Brannin; that Daniel Brannin was the scy. on the note. All these facts were set forth in the affidavit; that the affidavit was with the claim before suit brought, and with the note when presented to the administrator of E. F. Nutall for payment, and was filed with the suit in--institution thereof; he says the affidavit has been lost or mislaid."

On the filing of the foregoing affidavit, the rule was discharged; and that ruling of the court is complained of by appellant as erroneous.

For appellees it is insisted, that whether the affidavit of Brannin was sufficient or not, the rule was properly discharged--1st. Because there was no sufficient foundation for it; and, 2d. That even if there had been, the motion for the rule came too late under the ruling of this court in Thomas' ex'r vs. Thomas, 15 B. Mon., 178.

The statement in the answer in relation to the previous demand is, that defendant denies that " the plaintiffs, before the commencement of their action, presented their demand claimed by them in this action, accompanied by the affidavits required by law, to this defendant, and demanded payment thereof." This is deemed quite sufficient; it denies that the demand was made of the debt of...