Smith v. Jones
| Decision Date | 03 April 1867 |
| Citation | 15 Mich. 281 |
| Court | Michigan Supreme Court |
| Parties | Eben Smith, jr., administrator of H. W. Ellsworth, v. Robert Jones |
Heard April 2, 1867 [Syllabus Material]
Certiorari to Kent circuit.
This writ was brought to review the proceedings of the circuit court for Kent circuit, in granting an order for the issuing of an execution against an administrator. The facts are stated in the opinion.
The following are the errors assigned:
1. For that the said judgment was certified to the probate court under section 2931 of the Compiled Laws.
2. For that said judgment was presented to the commissioners appointed by the probate court of Kent county, in said estate, and allowed by them.
3. Because the amount of said judgment must be paid in the same manner as other claims duly allowed against the estate of said deceased.
4. That by the death of the defendant in the original suit, and the subsequent proceedings, the plaintiff's specific lien, by virtue of such writ of attachment, was lost, and he is not therefore entitled to enforce it, to the exclusion of the other creditors; and,
5. Because such judgment is under the control and disposition of the probate court, and the plaintiff can not have execution in the circuit court of the county of Kent.
Order of the circuit court affirmed.
Miller & Willson, for plaintiff:
1. A lien was created by the levy and subsequent proceedings (2 Comp. L., § 4751), which was not lost by the death of original defendant.
2. The action was prosecuted to final judgment, after the death of the original defendant: 2 Comp. L., § 2931.
3. The time was fixed by the probate court for the payment of debts by the administrator: 2 Comp. L., § 2946.
4. The right to issue execution against the estate of the deceased was suspended by the appointment of commissioners, until the expiration of the time limited by the court for the payment of debts: 2 Complied Laws, § 2930. See also §§ 2974-5.
5. Plaintiff claims that a lien having been created by the levy and subsequent proceedings, and the time limited by the probate court for the payment of debts having expired, and the judgment being still unpaid, he is entitled to an execution on his judgment in the regular form: 2 Comp. L., §§ 4763-4.
The inference from the language of the statute (§§ 2930, 2974-5) is, that the lien of the attachment is not destroyed, but only suspended during the time limited for the payment of debts.
Justice requires that plaintiff be allowed to enforce his lien by an execution, and not be compelled to resort to any other proceedings for that purpose.
Eben Smith, jr., for defendant:
1. The plaintiff has no specific lien on the lands levied on under his attachment.
The judgment in the cause was certified to the probate court, under section 2931 of the Compiled Laws, and presented to the commissioners appointed on said estate and allowed by them; and the amount thereof must be paid in the same manner as other claims duly allowed against the estate: Comp. L., § 2931.
2. The plaintiff is not entitled to have an execution issue on his judgment.
No execution shall issue against the administrator, etc., during the time allowed him for the payment of debts, except in the case provided for in section 2974: Comp. L., § 2975.
Article No. 190, laws 1850, amended said section 2974, by inserting between the words "omitted" and "no," the words "the judge of probate shall perform the duties devolving upon such commissioners by law," and thus provided against any failure in allowance of claims.
The section before amendment provided that "if the appointment of commissioners to allow claims should in any case be omitted, no person having any contintingent or other lawful claim against a deceased person should thereby (i.e., by any failure to appoint commissioners, etc.) be prevented from prosecuting the same against the executor, etc., as provided by law, and in such case (i. e., in case the appointment of commissioners to allow claims should in any case be omitted) the claimant having lien by attachment previous to his death, may, on obtaining judgment, have execution, etc."
The words, as provided by law in the section, refer to the ordinary methods of prosecuting claims to judgment.
The plaintiff in this case having presented his claim to commissioners appointed by the probate court, and the same having been allowed, it must be paid in the same manner as other claims duly allowed against the estate. It is under the control and disposition of the probate court, and the plaintiff can not have execution in this court, even though the time limited by the probate court for payment of debts has passed and not been extended.
The clerk of this court properly refused to issue any process on said...
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Ex parte Landaal
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