Poyner v. Gilmore, 31537

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Smith, C. J.
• Citation: 171 Miss. 859,158 So. 922
• Parties: POYNER v. GILMORE, et al
• Docket Number: 31537
• Decision Date: 21 January 1935

158 So. 922

171 Miss. 859

POYNER
v.
GILMORE, et al

No. 31537

Supreme Court of Mississippi

January 21, 1935

Division A

1. CLERKS OF COURTS.

As respects liability of chancery clerk for failure to attach to claim against estate certificate that claim was probated, allowed, and registered, probating, allowing, and registering of claims against estate are not "judicial acts" (Code 1930, sections 338, 340, 1671).

2. EXECUTORS AND ADMINISTRATORS.

Whenever claim against estate of decedent, to which affidavit in compliance with statute is attached, is presented to clerk for probate, clerk has mandatory duty to admit claim to probate by attaching his certificate thereto (Code 1930, sections 338, 340, 1671).

3. OFFICERS.

Public officer's act is "ministerial" if duty has been positively imposed by law and its performance required at time and in [171 Miss. 860] manner or upon conditions which are specifically designated, duty not being dependent upon officer's judgment or discretion: and that a necessity may exist for ascertainment from personal knowledge or by information of those facts or conditions upon existence or fulfillment of which performance of act becomes a clear and specific duty does not convert act into a "judicial act."

4. CLERKS OF COURTS.

Bill against chancery clerk and his surety for failure to attach to claim against estate clerk's certificate setting forth that claim was probated, allowed, and registered, because of which failure claim was disallowed, held not demurrable because not alleging that administrator possessed assets with which to pay claim if it had been properly probated, since claimant would at least be entitled to nominal damages (Code 1930, sections 338, 340 1671).

HON. JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Pontotoc county HON. JAS. A. FINLEY, Chancellor.

Bill by Mrs. Daisy Poyner against T. B. Gilmore and others. From a decree sustaining a demurrer to, the bill and dismissing the bill, complainant appeals. Reversed and remanded.

Reversed and remanded.

Dean Belk, of Holly Springs, for appellant.

Where the acts of a clerk of a court are subject to confirmation or rejection by the judge of that court, all acts of the clerk are ministerial.

11 C. J. 848; 11 C. J. 884; sec. 54; Section 340, Miss. Code 1930.

Although sections 337 and 338 of our Code give the clerk certain powers to do and perform acts at any time, under section 337, and at rules under section 338, these acts depend for their validity upon being confirmed by the court; and even these acts are merely quasi judicial functions.

The rule is that if there be sufficient equity on the face of the bill to require an investigation of the facts, [171 Miss. 861] in other words, if the bill has some merit, and considered as a whole, shows a good cause of action, it will stand against a general demurrer.

Griffith Chancery Practice, secs. 170, 291, 298, 310.

The original bill charges a public officer with neglect of duty under section 2903 of our Code, and it is impossible for the mind of this scrivener to conceive that such rule would here apply so as to make it encumbent upon probate creditors that they be required to coerce a public officer into the performance of his duties or any one of them.

Lester G. Fant, Jr., of Holly Springs, for appellant.

The question, therefore, is not whether the statute shall be unheld, but whether the probate of the claim in the case at bar complied substantially with the statute. Upon this issue, which we submit is the only issue in the case, the appellees make no argument except to state as their conclusion of law that the certificate upon the back of the copy of the note was a separate certificate from the certificate of probate. And that although the two were bradded together permanently, the fact that the seal was impressed once instead of twice, and that a date was written once instead of twice, makes the probate of the claim invalid. Such is not the law.

Bankston v. Coopwood, 99 Miss. 511, 55 So. 48.

A substantial, and not a literal, compliance with the statute is required.

Walker v. Nelson, 87 Miss. 268.

The appellees have argued that the decision in the case of Bank v. Fox,...