Robinett v. Starling

• Decision Date: 25 March 1895
• Court: Mississippi Supreme Court
• Parties: ALICE N. ROBINETT v. C. H. STARLING, ADMINISTRATOR

18 So. 421

72 Miss. 652

ALICE N. ROBINETT v. C. H. STARLING, ADMINISTRATOR

Supreme Court of Mississippi

March 25, 1895

March 1895

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

The opinion states the case.

Judgment reversed.

Skinner & Lewenthall, for appellant.

The question here involved has been settled in appellant's favor. Harris v. Hutcheson, 65 Miss. 9. If appellant had instituted this suit upon the note in question, the same should have been registered. In no sense was appellant a creditor of appellee until her recovery of the judgment against the Delta Insurance Company, and it is questionable whether she was such even then. Therefore she was not a creditor until December, 1893, at which time a "claim" against the estate was barred. The right to sue the stockholder arises, not from any contractual relation between him and the judgment creditor, but because of the statute. Jones v. Bank, 71 Miss. 1023. To bar the appellant because the claim was not registered, would be to inflict loss on her for not doing what she could not do, and to make her suffer for the negligence of the insurance company, from whom she was trying to coerce payment. 65 Miss 13.

No counsel for appellee.

OPINION

COOPER, C. J.

This case was tried, on an agreed statement of facts, by the judge, trial by jury having been waived by the parties. The facts are that appellant, on the eleventh day of December, 1893, recovered a judgment for eleven hundred and eighty dollars against the Delta Insurance Company, on which an execution has been issued and returned nulla bona. The appellee's intestate, W. L. Jones, was a subscriber for ten shares of the stock of the company of the par value of one hundred dollars per share. He paid in cash one hundred and fifty dollars and executed his note to the company for eight hundred and fifty dollars, payable upon calls to be made by the company. He had, before his death, paid all calls made by the company, and there remained unpaid the sum of seven hundred and fifty dollars. He died on the fifteenth day of May, 1892, and Starling was appointed administrator of his estate, and, on the fourth day of June, 1892, published notice to creditors to probate and register their claims against said estate as directed by law. The note given by Jones to the company was never probated, and the time for probating claims has passed. The court held that the plaintiff was precluded of her action by reason of the neglect of the insurance company to probate the note.

Our statute upon the subject of probating claims against estates of decedents, so far as is relevant to this controversy, provides that "all claims against the estate of a deceased person, whether due or not, shall be registered in the court in which the letter's testamentary or of administration were granted, within one year after the first publication of notice to creditors to present their claims, otherwise the same shall be barred, and no suit shall be maintained thereon in any court, even though the existence of such claim may have been well known to the executor or administrator." Code 1880, § 2028; Code 1892, § 1933.

Whether the present action may be sustained, notwithstanding the failure of the insurance company to probate the note, is determinable by the inquiry whether the cause of action is a "claim" within the meaning of the statute above quoted. Our statute upon the liability of stockholders to corporate creditors is as follows: "In all joint-stock corporations hereafter created, whether under this chapter or otherwise, each stockholder shall be individually liable for the debts of the corporation, contracted during his...