Powell v. Buchanan
| Decision Date | 26 November 1962 |
| Docket Number | No. 42447,42447 |
| Citation | 245 Miss. 4,147 So.2d 110 |
| Parties | William H. POWELL v. Mrs. Iris A. BUCHANAN, Administratrix of the Estate of Frank Moore Buchanan. |
| Court | Mississippi Supreme Court |
J. A. Travis, Jr., Crisler, Crisler & Bowling, Jackson, for appellant.
Cox, Dunn & Clark, Satterfield, Shell, Williams & Buford, Jackson, for appellee.
Buchanan and Powell were involved in the same automobile accident. Buchanan was killed; Powell was injured and was disabled for about a year. The accident happened May 21, 1960. The administratrix of Buchanan's estate qualified May 28, 1960, and gave notice to creditors beginning May 30, 1960. Final account and petition for discharge was filed January 16, 1961, and decree discharging the administratrix and her bondsmen was entered on March 3, 1961. On May 23, 1961, Powell filed a petition in the Chancery Court of the First District of Hinds County setting up that he had a claim for personal injuries against the estate of Buchanan, that the administratrix of Buchanan's estate had been discharged, that he desired to proceed against the estate and asked for the appointment of an administrator. On this petition a decree was entered appointing the Sheriff of Hinds County (Gilfoy) as administrator. On June 29, 1961, a motion to dismiss Gilfoy as administrator was filed by the former attorney of Mrs. Buchanan, the previous administratrix, who filed as such attorney and as amicus curiae, seeking to have Gilfoy dismissed as administrator, apparently in line with Gasque v. Moody, 20 Miss. 153.
On hearing, the appointment of Gilfoy was set aside by the chancery court on November 8, 1961. Then on January 9, 1962, Powell filed a petition to reopen the account and the estate on the ground that the final account was erroneous in failing to list the unliquidated claim of the petitioner and also in failing to list a liability insurance policy as an asset and should be surcharged under Section 646, Code of 1942. Answer to this petition was filed by the former administratrix on February 29, 1962. The petition to reopen the estate also prayed for general relief, in that it asked that if the former administratrix did not desire to serve some other person be appointed as administrator, and it also contained a separate prayer for general relief. The petition came on for hearing before the chancellor on March 22, 1962. On completion of the evidence it was taken under advisement by him, and on April 10, 1962 the petition was dismissed, at the petitioner's cost.
At the hearing before the chancellor on the last petition, evidence was attempted to be offered about the existence of a liability policy, to which objection was made and the objection sustained by the chancellor. The petitioner testified as to being in an automobile accident with the decedent, and of having been totally disabled for about one year. An attorney of the City of Jackson testified that he, representing the petitioner, had investigated the accident, and when asked the question as to whether in his opinion the petitioner had a valid claim against the estate, objection was made and sustained. The attorney was permitted to testify that he desired to file suit for the petitioner.
We do not think it is necessary to go into the question of liability insurance. Appellee asserts that such evidence was inadmissible and cites authorities of the State of Mississippi holding that testimony as to liability insurance was erroneous and reversible error in suits being tried before a jury. We do not think these authorities are applicable and at the same time, it was not necessary for the petitioner to show the existence of such a policy. It was only necessary for him to show that he had an unliquidated claim against the estate the he desired to have passed upon by a court of law. The petitioner could not have probated his claim under Section 569 of the Code of 1942. It has been held many times that such claims are not probatable. See Bullock v. Young (Miss.), 137 So.2d 777, and the several authorities therein cited.
Appellee pleads here on this appeal Section 610 of the Code of 1942, which provides that actions of trespass may survive against a decedent, but that such actions must be begun within one year after the publication of notice to creditors. We think the statute controlling this action is Section 609, Code of 1942, which provides that personal actions survive. A personal action is defined in 1 C.J.S. Actions Sec. 1, p. 947 as:
This definition of a personal action was adopted and announced by this Court in the case of McNeely v. Natchez, 148 Miss. 268, 114 So....
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Caine v. Hardy
...for its breach, or for the recovery of damages for the commission of an injury to the person or property." Powell v. Buchanan, 245 Miss. 4, 8, 147 So.2d 110, 111 (1962). One way to apply this definition to § 1983 actions is to examine the facts of each separate § 1983 claim and characterize......
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Au v. Au
...personal chattel, or for the satisfaction in damages for injury to the person or property. (Footnotes omitted.) Powell v. Buchanan, 245 Miss. 4, 147 So.2d 110 (1962); 1 C.J.S. Actions § 1. Since this definition includes fraudulent representations, the six-year limitations period is We hold ......
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Miles' Estate, In re, 240
...had been disposed of, it cannot be held that the Miles estate has been completely settled. Doub v. Harper, supra; Powell v. Buchanan, Admrx., 245 Miss. 4, 147 So.2d 110; In re Palmer's Estate, 41 Ill.App.2d 234, 190 N.E.2d 500. We do not believe the right of petitioner can be defeated merel......
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Holt v. City of Hattiesburg
...the recovery of damages for the commission of an injury to the person or property.'" Caine, 943 F.2d at 1410 (quoting Powell v. Buchanan, 147 So. 2d 110, 111 (Miss. 1962)); see also MISSISSIPPI LAW OF TORTS § 14:20 (2d ed. 2008) (same). Under this framework, we retain authority over all of ......