Slater v. Stoffel, s. 20370

• Decision Date: 12 December 1966
• Docket Number: 20371,No. 2,Nos. 20370,s. 20370,2
• Citation: 221 N.E.2d 688,140 Ind.App. 131
• Parties: Robert SLATER, George Slater, Appellants, v. Mark E. STOFFEL, Administrator of the Estate of Bernard J. Stoffel, Deceased, the Community State Bank of Huntington, Indiana, Administrator of the Estate of Donald H. Stoffel, Deceased, Appellees
• Court: Indiana Appellate Court

Page 688

221 N.E.2d 688

140 Ind.App. 131

Robert SLATER, George Slater, Appellants, v. Mark E. STOFFEL, Administrator of the Estate of Bernard J Stoffel, Deceased, the Community State Bank of Huntington, Indiana, Administrator of the Estate of Donald H Stoffel, Deceased, Appellees.

Nos. 20370, 20371.

Appellate Court of Indiana, Division No. 2.

Dec. 12, 1966.

William F. McNagny, John M. Clifton, Barrett, Barrett & McNagny, Ft. Wayne, for appellants.

Thomas W. Yoder, of Livingston, Dildine, Haynie & Yoder, Ft. Wayne, for appellees.

SMITH, Chief Justice.

This case arose from a personal injury action filed against the personal representatives of the estates of the two deceased tortfeasors. Plaintiff-appellants, Robert Slater and George Slater, in separate actions each sued Mark E. Stoffel, Administrator of the Estate of Bernard J. Stoffel, deceased, and The Community State Bank of Huntington, Indiana, Administrator of the Estate of Donald H. Stoffel, deceased, to recover damages for injuries sustained in a head-on-automobile collision between a motor vehicle operated by George Slater and a motor vehicle operated by either Bernard J. Stoffel, deceased, or Donald H. Stoffel, deceased. The collision occurred, as alleged in the complaint, on June 6, 1959, and was the result of the negligent conduct on the part of one of the defendant-appellees.

There are three important factual areas in this case as follows:

1. The appellants as alleged did not comply with Burns' Indiana Statutes, § 7--801(a), 1953 Replacement (Acts 1953, ch. 112, § 1401, p. 295; 1961 ch. 287, § 1, p. 702) which provides in substance that all claims against a decedent's estate, other than those of administration and claims of the United States, shall be forever barred unless filed with the court in which such estate is being administered within six months after the date of the first published notice to creditors.

2. Because the appellants were residents of the State of Georgia, instead of complying with §§ 7--801, 7--802 Burns' Indiana Statutes they attempted to proceed directly against the appellees by complaint and summons filed in the United States District Court for the Northern District of Indiana, Fort Wayne Division. This civil action was commenced on December 2, 1959. The District Court entered a judgment for the appellants; however, the Court of Appeals for the 7th Judicial Circuit reversed this judgment by a unanimous decision and entered a judgment for the appellees. Slater v. Stoffel, Admr., et al. 313 F.2d 175 (C.A.7th, 1963).

The Supreme Court of the United States denied certiorari and remanded the case to the District Court which entered judgment for the appellees on the theory that plaintiff-appellants' claims were barred for failure to file a claim with the court against the decedents' estates within the six month period pursuant to the provisions of Burns' Indiana Statutes, §§ 7--801 and 7--802. 375 U.S. 818, 84 S.Ct. 54, 11 L.Ed.2d 53 (1963).

3. After the Federal District Court rendered judgment for the appellees, the appellants returned to the Huntington Circuit Court where each brought an action for $100,000 damages; and issues were joined in each case on a demurrer to the appellants' complaint. The trial court sustained the appellees' demurrers to the appellants' complaint and the appellants refused or failed to plead over. The appellants' motion for a new trial was overruled, and appellants now assign the trial court's action in overruling the appellants' demurrers as error.

The question presented is one of first impression in Indiana. The question is whether the claimant, suing in tort, may bring an action by complaint and summons against a deceased tortfeasor's estate under Burns' Indiana Statutes § 7--801(f) instead of filing a claim against the estate within six months after first published notice to creditors; and if such a proceeding is allowed under Burns' Indiana Statutes, § 7--801(f), then may the provisions of § 7--801(f) be applied retroactively in the instant case to provide relief to the claimant.

Burns' Indiana Statutes, § 7--801 provides:

Limitations on filing claims--Statutes of Limitation--Claims barred when no administration commenced--Liens not affected--Tort claims against estate.--(a) All claims against a decedent's estate, other than expenses of administration and claims of the United States and of the state and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent, unless filed with the court in which such estate is being administered within six (6) months after the date of the first published notice to creditors.

(b) No claim shall be allowed which was barred by any statute of limitations at the time of decedent's death.

(c) No claim shall be barred by the statute of limitations which was not barred thereby at the time of the decedent's death, if the claim shall be filed within six (6) months after the date of the first published notice to creditors.

(d) All claims barrable under the provisions of subsection (a) hereof shall, in any event, be barred if administration of the estate is not commenced within one (1) year after the death of the decedent.

(e) Nothing in this section shall affect or prevent any action or proceeding to enforce any mortgage, pledge or other lien upon property of the estate.

(f) Nothing in this section shall affect or prevent the enforcement of a claim arising out of tort against the estate of a deceased tort-feasor within the period of the statute of limitations provided for such tort action and for the purpose of enforcing such a tort claim the estate of the tort-feasor may be opened or reopened and suit filed against the special representative of the estate within the period of the statute of limitations of such tort: Provided, however, That any recovery against the tort-feasor's estate shall not affect the distribution of the assets of the estate to the heirs, legatees, or devisees of the decedent tortfeasor unless such suit was filed within the time allowed for filing claims against the estate. The rules of pleading and procedure in such cases shall be the same as apply in ordinary civil actions. (Acts 1953, ch. 112, § 1401, p. 295; 1961, ch. 287, § 1, p. 702.) (Emphasis supplied)

Subsection (a) of the above cited statute is commonly known as a non-claim statute. It grants to every person having a claim of any kind or character against a decedent's estate, the right to file the same in the court having jurisdiction thereof, and have the same adjudicated, provided such claim is filed within the time specified in the statute. Donnella, Administratrix, etc. v. Crady (1963), 135 Ind.App. 60, 185 N.E.2d 623.

Chapter 112 of the Acts of 1953 (Burns' Indiana Statutes, Section 7--801) was amended in 1961 by adding thereto subsection (f). Subsection (f) provides in substance that a tort action may be brought for such tort, provided recovery against the tortfeasor's estate does not affect the distribution of the assets. The distribution may be disturbed if the suit was brought within the time allowed for the filing of claims against an estate as the appellants have done in the present case. Burns' Indiana Statutes, Section 7--801(f).

The appellants' cause of action arose on June 6, 1959 and was preserved or allowed to survive the death of the appellees by Burns' Indiana Statutes, Section 2--403, which provides:

'All causes of action shall survive, and may be brought, notwithstanding the death of the person entitled or liable to such action, by or against the representative of the deceased party, except actions for personal injuries to the deceased party, which shall survive only to the extent provided herein. Any action contemplated in this section or in section 6 (§ 2--402) of this act may be brought, or the court, on motion, may allow the action to be continued, by or against the legal representatives or successors in interest of the deceased.'

Burns' Indiana Statutes, Section 2--602, provides:

'The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards.

First. For injuries to person or character, * * *, within two (2) years.'

The appellants' cause of action is limited only by the above two-year statute of limitations.

The record reveals that at the time this action was filed in the Huntington Circuit Court, the statute of limitations provided in Burns' Indiana Statutes, Section 2--602, had not yet expired.

The commencement of an action to enforce a right before the statute of limitations has run against it, arrests or suspends the running of the statute, and a lapse of time after the action is commenced which is not...