Sheeks v. Fillion
| Decision Date | 07 January 1892 |
| Docket Number | 428 |
| Citation | 29 N.E. 786,3 Ind.App. 262 |
| Parties | SHEEKS, ADMINISTRATOR, ET AL. v. FILLION |
| Court | Indiana Appellate Court |
From the Lawrence Circuit Court.
Judgment affirmed.
J. H Willard, for appellants.
J Giles, for appellee.
This was a claim against a decedent's estate. It is contended on behalf of the appellants that the court erred in overruling their motion to strike out a part of the claim, or complaint. This motion is not made part of the record by bill of exceptions or order of court. Therefore, this action of the court below is not so presented that this court can consider it. Section 650, R. S. 1881; Weston v Lumley, 33 Ind. 486; Greensburgh, etc., T. P. Co. v. Sidener, 40 Ind. 424; Wilson v. Piper, 77 Ind. 437; Owens v. Tague, ante, p. 245.
It is next insisted by the appellants that the court erred in overruling their motion to dismiss the claim. This motion not being preserved in the record by bill of exceptions or order of court, we can not consider the action of the court in overruling it. Long v. Town of Brookston, 79 Ind. 183; Evans v. Schafer, 88 Ind. 92.
A demurrer to the complaint for want of sufficient facts was overruled.
The statement of the claim was in the form of an account embracing a number of separate items of indebtedness, accompanied by an affidavit of the claimant in substantial compliance with the statute. Section 2310, R. S. 1881; Acts of 1883, p. 153.
The insufficiency of the statement of one or more of the separate items of the claim could not render bad on demurrer the entire claim containing other separate items of indebtedness so stated that if they had been the only items the claim would withstand a demurrer.
Such a statement is sufficient if it contain enough to apprise the defendant of the nature of the claim and the amount demanded, and to bar another action for the same demand. Taggart v. Tevanny, 1 Ind.App. 339, 27 N.E. 511; Henry Prob. Law, 184.
The statement in the case at bar, after a heading indicating it to be a statement of indebtedness of the estate of the intestate represented by the appellants to the appellee, contained items, among which was the following:
"To laying sidewalks in front of his dwelling-house and furnishing tools, in April, 1887, 5 days, at $ 4.50 per day, $ 22.50."
This was sufficient as to this item, whatever might be true as to any other item.
There was no error in overruling the demurrer to the complaint.
A demurrer to the third paragraph of answer was sustained.
One item of the claim was a separate and independent charge in a certain amount for work in cutting a monument in the year 1889.
The third paragraph of answer was pleaded as a partial answer addressed to so much of the claim as made a charge for a monument, and alleged that said part of said claim was not due at the time of the original filing of said claim, but that any claim of any nature for such monument arose after the original filing of the claim.
The claim was filed originally in 1889. An amended complaint, filed in 1890 (appellants appearing by counsel and not objecting), is in the record. What change in the claim was made by the amendment is not shown. It does not appear that the item to which the third paragraph of answer relates was not in the original statement.
The statute provides that the "holder" of a claim, whether due or not, shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending. Section 2310, R. S. 1881; Acts of 1883, p. 153. This statement should show a valid subsisting indebtedness of the estate to the claimant, a state of facts creating an existing indebtedness, though the debt need not be due.
The statute (section 2318, R. S. 1881) provides that immediately upon the filing of the claim the clerk shall enter it upon the claim docket, and that the filing of the claim and entry thereof upon the claim docket shall be deemed the commencement of the action upon the claim.
It is also provided (section 2319, R. S. 1881; Acts of 1883, p. 154) that whenever any claim against the estate shall have been filed and placed upon the appearance docket ten days before the first day of the term, the executor or administrator shall admit, or refuse to admit, such claim in writing on the margin of such appearance docket opposite such claim; and that if the claim is not so admitted before the last day of the term, it shall be transferred to the issue docket, and shall stand for trial at the next term.
If, after the claim has been transferred to the issue docket, the claimant, without objection on the part of the administrator, be permitted to amend the statement by introducing therein an item of claim based upon facts accrued after the claim was filed in the clerk's office, and was placed upon the docket upon which it is the administrator's duty to allow or reject claims, the defendant could not, by answer in bar of such part of the claim, raise an objection, which he has so waived, to the making of such amendment.
If it be error to permit such an amendment, then, as we can not presume anything against the action of the trial court for the purpose of reversing its judgment, but must assume that it did right until the contrary is made to appear, we can not treat the item relating to a monument as having been introduced into the statement by an amendment erroneously permitted. It was included in the statement originally filed, or objection to its introduction by way of amendment was waived by the administrator.
It is provided (section 2324, R. S. 1881; Acts of 1883, p. 156) that, when the claim is transferred for trial, it is not necessary for the executor or administrator to plead any matter by way of defence, except a set-off or counter-claim to which the plaintiff shall reply. But, if the executor or administrator plead any other matter by way of defence, the claimant shall reply thereto; and the...
To continue reading
Request your trial