Lo Sasso v. Braun

• Decision Date: 12 November 1963
• Docket Number: No. 3164,3164
• Citation: 386 P.2d 630
• Parties: John LO SASSO, as Administrator of the Estates of Gary Dean Kroepel and Mark Douglas Kroepel, Deceased, Appellant (Plaintiff below), v. Arthur BRAUN, as Administrator of the Estate of Otto Braun, Deceased, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 630

386 P.2d 630

John LO SASSO, as Administrator of the Estates of Gary Dean Kroepel and Mark Douglas Kroepel, Deceased, Appellant (Plaintiff below), v. Arthur BRAUN, as Administrator of the Estate of Otto Braun, Deceased, Appellee (Defendant below).

No. 3164.

Supreme Court of Wyoming.

Nov. 12, 1963.

Paul B. Godfrey, Cheyenne, Henderson, Godfrey & Kline, on the brief, Cheyenne, for appellant.

Carl L. Lathrop, Cheyenne, Lathrop, Lathrop & Tilker, on the brief, Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This case involves an asserted claim for damages in connection with the death of two children, ages nine and six. The children were killed in an automobile accident while riding as guests in a vehicle driven by Otto Braun, who was also killed in the accident.

According to appellant's brief, there is no dispute that a 'creditor's claim' was not filed in the estate of Otto Braun. However, suit was filed against the administrator within the creditor's claim period. After the six-month period for filing claims had elapsed, the case came before District Judge Allen A. Pearson for pretrial conference, the defendant having pleaded that the complaint failed to state a claim against defendant upon which relief could be granted.

At this conference the matter of failure to file a claim under the provisions of § 2-227, W.S.1957, was brought to the court's attention. Subsequently attorneys for plaintiff asked leave to amend the complaint by alleging the existence of liability insurance carried by Braun and naming the insurance company as a party defendant. In the proposed amended complaint, plaintiff would have waived any claim against the assets of the estate of Otto Braun.

The judge ruled in effect that plaintiff's claim was barred by his failure to file a claim in the Braun estate and that the defect could not be cured by amendment. In consequence, the right to amend was denied and the suit was dismissed. We are asked on appeal to say whether the action of the district judge was correct. We think it was.

The statutory requirement for presenting a claim to the executor or administrator of an estate, as contained in § 2-227, is:

'No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against the other property of the estate is expressly waived in the complaint.'

Also, the provisions of § 2-221, W.S.1957, have an important bearing in this case. That section provides:

'All claims whether the same be due, not due, or contingent, must be filed or exhibited within the time limited in the notice and any claim not so filed or exhibited is barred forever * * *.'

In bringing his appeal to us, the administrator of the children's estate argues that the exception in § 2-227 pertaining to an action by a mortgagee to enforce his mortgage lien, where recourse against other estate property is waived, shows a legislative intent to exempt from the provisions of the section all claims when the claimant is not seeking an asset of the estate.

If the legislature did in fact have such an intention, it failed to express it, and of course, we could not if we would act for the legislature by adding an exception which is clearly omitted. Such action would be in violation of the general rule that courts cannot supply omissions in a statute and will not read into a statute exceptions not made by the legislature. Lewis, Roca, Scoville & Beauchamp v. Inland Empire Insurance Company, 10 Cir., 259 F.2d 318, 323; Furman v. Naldon Realty Corp., Sup., 210 N.Y.S.2d 140, 142; Jackson v. State Corporation Commission, 183 Kan. 246, 326 P.2d 280, 283; City of Bristow ex rel. Hedges v. Groom, 194 Okl. 384, 151 P.2d 936, 940; In re Moore's Estate, 210 Or. 23, 307 P.2d 483, 65 A.L.R.2d 715, mandate recalled 210 Or. 44, 308 P.2d 180.

As stated in State ex rel. Morrison v. Anway, 87 Ariz. 206, 349 P.2d 774, 776, it is a universal rule that courts will not enlarge, stretch, expand or extend a statute to matters not falling within its express provisions. Appellant therefore asks more than we can grant, in asking that we enlarge the exception expressed in § 2-227...