Pruitt v. Muldrick

• Decision Date: 03 June 1901
• Parties: PRUITT v. MULDRICK.
• Court: Oregon Supreme Court

65 P. 20

39 Or. 353

PRUITT v. MULDRICK.

Supreme Court of Oregon

June 3, 1901

Appeal from circuit court, Grant county; Morton D. Clifford, Judge.

Action by Elmer Pruitt, an infant, by W.G. Overholt, his guardian ad litem, against Jennie Muldrick, as executrix of the will of John Muldrick, deceased. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Elmer Pruitt, a minor, brought this action, by W.G. Overholt, his guardian ad litem, against Jennie Muldrick, as executrix of the last will and testament of John Muldrick, deceased. The complaint sets up the minority of Pruitt, the appointment of Overholt as guardian ad litem, his qualification, the decease of Muldrick, the probate of his will, the issuance of letters testamentary to defendant, the presentment of the claim sued on, her disallowance thereof, and the manner in which the indebtedness arose, etc. The defendant denied that John Muldrick ever became indebted to plaintiff in any sum, and for a separate defense, set up the presentation of said claim by plaintiff for allowance; her rejection thereof, and indorsement, "Examined and disallowed," with the date; the subsequent service upon her of 10 days' notice that he would present the claim to the county court for allowance; the presentment thereof, and its rejection and disallowance by said court, which action, it is alleged, has the force and effect of a judgment, and bars the plaintiff's action. To this answer a demurrer was interposed, which being overruled, the action of the court in that respect constitutes one of the assignments of error. The reply is in avoidance of the separate defense, and avers that plaintiff, being a minor, filed his petition in the county court, praying that one Charles Timms be appointed his guardian ad litem to present and prosecute said claim in the county court for allowance; that such proceedings resulted in an order for his appointment, but notwithstanding such order he failed and neglected to qualify or to take or to file his oath as such guardian ad litem, and, without so or otherwise qualifying, served upon the defendant notice that he would apply to the county court for the allowance of said claim that he presented the claim in conformity to said notice that in response thereto the defendant appeared and moved the court "to disallow, dismiss, and to quash" the same, and all proceedings had with reference to the presentment thereof to the court, assigning numerous reasons,--among others, that Timms had not the legal capacity to prosecute the claim as guardian ad litem for Pruitt, a minor, and that the court was without jurisdiction to hear or to allow the same,--whereupon it was ordered and adjudged that said claim be, and the "same is hereby dismissed," and all proceedings had with reference to the prosecution thereof "be, and the same are hereby, quashed and held for naught," and that defendant recover her costs and disbursements to be taxed. Upon this state of the record, the defendant moved for and obtained a judgment in her favor upon the pleadings, from which the plaintiff appeals.

A.D. Stillman, for appellant.

J.L. Rand, for respondent.

WOLVERTON J. (after stating the facts).

It is argued that the remedy provided for by section 1134, Hill's Ann.Laws Or., is exclusive, and supersedes the action which formerly obtained for the purpose of establishing a claim against the estate of a deceased person but the position is untenable. Originally section 1134 merely provided that when a claim is presented to the executor or administrator he shall indorse upon it his allowance or rejection, with the date, and, if allowed, shall pay it in due course of administration, and that no claim shall be allowed which is barred by the statute of limitations. All else, as the section now stands upon the statute, was added in 1885, when it was provided that, if any claim or demand is disallowed, the claimant may present the same to the county court for allowance on giving the executor or administrator 10 days' notice thereof. The court is thereupon accorded the power to hear and determine in a summary manner the claim or demand against the estate, and is directed to cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment, from which an appeal may be taken as in ordinary cases. This court has held with reference to such section that its purpose and effect were to afford a summary method for the adjudication of claims by the county court against the estates of deceased persons, without the necessity of technical pleadings, and that the proceeding is in the nature of an action, as contradistinguished from a suit affording to the parties the right of trial de novo and by jury in the appellate court. Wilkes v. Cornelius, 21 Or. 341, 23 P. 473; Id. (second appeal) 21 Or. 348, 28 P. 135; Johnston v. Shofner, 23 Or. 111, ...