State ex rel. Steinfort v. District Court of Fourth Judicial Dist in and for Ravalli County

• Decision Date: 04 December 1939
• Docket Number: 8035.
• Citation: 97 P.2d 341,109 Mont. 410
• Parties: STATE ex rel. STEINFORT v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR RAVALLI COUNTY et al.
• Court: Montana Supreme Court

97 P.2d 341

109 Mont. 410

STATE ex rel. STEINFORT v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR RAVALLI COUNTY et al.

No. 8035.

Supreme Court of Montana

December 4, 1939

Original proceeding to secure a writ of supervisory control by the State of Montana, on the relation of Mary Steinfort, against the District Court of the Fourth Judicial District, in and for the County of Ravalli, and the Honorable Albert Besancon a judge thereof.

Writ issued.

C. E Pew, of Helena, and Robert A. O'Hara, of Hamilton, for respondents.

ANGSTMAN Justice.

This is an application for a writ of supervisory control and seeks a reversal of an order of respondent court denying relatrix the right to amend her claim against the estate of John P Steinfort, deceased.

The important facts are these: John P. Steinfort died on March 17, 1939; Mary A. Steinfort, the widow, was appointed administratrix of the estate; she gave notice to creditors for presentation of claims, the time therefor expiring on August 6th. On July 29th relatrix, a sister of deceased residing in Orange City, Iowa, presented to the administratrix a claim for $4,972 based upon two promissory notes dated May 1st, 1924, and executed at Donnelly, Minnesota, in the principal sum of $2,660 and $167.13, respectively, and bearing interest at six per cent., payable annually. The notes were payable May 1, 1926, and May 1, 1925, respectively. Copies of the notes were attached to the claim, and it contained the affidavit in statutory form, Sec. 10174, Rev.Codes, that the sum claimed "is justly due to claimant; that no payments have been made thereon which are not credited." The claim did not show that any payments had been made on the notes.

It was rejected by the administratrix on the same day as presented; on August 4th relatrix filed an amended claim in the same amount as the original in which the following endorsements appear upon each note:

"Interest pd. to May 1, 1925.

Interest pd. to May 1, 1927."

It also stated that no payments had been made on the claim which were not credited. The amended claim was also rejected by the administratrix. On September 20th and after the time for the presentation of claims had expired relatrix filed a petition with the respondent court asking leave to file an amendment to her claim. The proposed amendment sought to set out that the following payments had been made on the claim at the times indicated, but which had not been endorsed on the notes:

"March 26, 1925, received-- $160.00

March 23, 1926, received-- 135.00

Feb. 15, 1927, received for balance of interest up to May 1, 1927 213.89

1931, received 100.00

1932, received 100.00

1933, received 100.00

1934, received 100.00

1935, received 50.00

1936, received 50.00

May 28, 1937, received 50.00"

The proposed amended claim also recites:

"That where the same were known, this claimant has inserted the month and the day on which the payments were made in the above schedule; that, however, as to some of the payments, she has only the record of the total payments made during a calendar year and has so entered the same. That the last payment made by the decedent on said notes was on the 28th day of May, 1939, in the amount of $50.00.

3. That all the said payments were taken into account in computing the amount due upon said claim as originally filed herein; but this claimant did not know that the dates of the several payments were material; that her failure to endorse all of said payments upon said notes was not done with any intention of avoiding the allowance of credit, but this claimant regarded the same as unnecessary."

The court, after hearing, denied leave to amend. The court in its order stated that as to the first two claims filed, "It clearly appears that both of these claims, on their face, were barred by the statute of limitations," and were properly rejected. The court further stated, "The proposed amendments show payments on these notes up to May 28th, 1937, and if these payments had been shown on either one of the two claims rejected and filed, they would have avoided the statute of limitations. The amendments are most vital, substantial, in fact, would have the effect of making a good claim out of a worthless one. Under the authority of the statutes and the Montana case of State ex rel Paramount Publix Corp. v. District Court et al., 90 Mont. 281, 1 P.2d 335, 76 A.L.R. 1371, it seems that this court has no authority at this time to allow such amendments."

The case presents the questions whether the court was correct in holding that it had no authority to allow the amendments, and if authority exists should it have been exercised in favor of the right to amend. Defendants, also by motion to quash and answer, have raised the question whether supervisory control is the proper remedy.

The court was in error in holding that it had no authority to allow the amendments. The general rule is stated in the note in 76 A.L.R. 1380, as follows: "It is generally held that an amendment, after time for filing has expired, of a claim filed against a decedent's estate within time, will be permitted where it effects no substantial change in the claim, nor introduces any new or different claim as the basis of recovery."

Many cases are there cited in support of the general rule. To the same effect is 24 C.J. 354, and 21 Am.Jur. Executors and Administrators, Sec. 376, page 595. And, after the time for filing claims has expired, an amendment to a claim filed within time will be permitted where the purpose of the amendment is to avoid the effect of the statute of limitations and when the essential grounds of recovery are left substantially unchanged. Wise v. Outtrim, 139 Iowa 192, 117 N.W. 264, 130 Am.St.Rep. 301. Section 9187, Rev.Codes is sufficiently broad to permit such amendments. The case of State ex rel. Paramount Publix Corp. v. District Court, 90 Mont. 281, 1 P.2d 335, 76 A.L.R. 1371, is not at variance with what we now hold. That case was by a divided court. As appears from the two opinions in the case, the court divided on the issue as to whether the amendment there involved changed the basis of recovery. The majority of the court held that it did.

It cannot be said that the amendments proposed here change the claim in any essential particular. The balance due on the notes is still the basis of recovery. The amendments simply show facts tending to show that credits already given on the note were paid at such times as to prevent the running of the statute of limitations.

Contention is made by respondents that the amendments if allowed, would in spite of the statement of relatrix to the contrary, change the amount of the claim, by reducing it. If this be so it would not deprive the court of authority to allow the amendments. They would not change the nature of the claim or the basis of recovery. The claim would...