Stevens v. D. R. Dunlap Mercantile Co.

• Decision Date: 15 January 1917
• Docket Number: 18669
• Citation: 112 Miss. 524,73 So. 570
• Court: Mississippi Supreme Court
• Parties: STEVENS v. D. R. DUNLAP MERCANTILE CO

73 So. 570

112 Miss. 524

STEVENS v. D. R. DUNLAP MERCANTILE CO

No. 18669

Supreme Court of Mississippi

January 15, 1917

Division A

APPEAL from the chancery court of George county, HON. W. M. DENNY Chancellor.

Petition by J. C. Stevens, administrator of J. B. Stevens, deceased against D. R. Dunlap Mercantile Company. From a decree ordering the clerk of the chancery court to indorse defendant's claim against the estate as required by law as of the time it was originally filed for probate, the administrator appeals.

The facts are fully stated in the opinion of the court.

Decree reversed.

Stevens & Cook and O. F. Moss, for appellant.

Mayes Wells, May & Sanders and White & Ford, for appellee.

OPINION

SYKES, J.

This is the second appeal of this case to this court from a decree of the chancery court of George county. The appellee mercantile company filed its claim for probate against the estate of J. B. Stevens, deceased, with the chancery clerk of George county within the time allowed by the law. The appellant administrator filed his petition, averring that the claim of appellee against the said estate had not been probated in the manner required by law, and that the presentation of the claim to the administrator was not sufficient in law to authorize him to pay it out of the funds of the estate. He, therefore, prayed that the claim be disallowed. The chancellor sustained a demurrer of the appellee to this petition, and dismissed it. An appeal was then prosecuted to this court, and the decree was reversed, and the cause remanded. The objection, in the first appeal which relates to this appeal, was that the clerk of the chancery court failed to follow the provisions of section 2106 of the Code of 1906, the said provision reading as follows:

"Thereupon, if the clerk shall approve, he shall indorse upon the claim the words following: 'Probated and allowed for & , and registered this day of , A. D. ,' and shall sign his name officially thereto. Probate, registration, and allowance shall be sufficient presentation of the claim to the executor or administrator."

From the report of this case in 67 So. 160, it appears that the clerk actually registered this claim in his registry claim book, but failed to make the proper notation, as above set forth on the claim. The decision of the court on that appeal holds that:

"Such probate, allowance, and registration is an official act of the clerk, and it is shown by his indorsement upon the claim itself; such indorsement being the mandatory requirement of the statute. The entry of the claim in the record of registration of claims will not avail to render it unnecessary for the clerk to approve the claim and enter his indorsement thereon, as required by law."

Upon the remand of the case to the chancery court the appellee here, defendant in that court, filed an answer and cross-petition to the petition of the appellant, alleging, in substance, the following: It denies that the clerk did not approve the account; admits the clerk did not, at the time the claim was presented to him for probate, indorse thereon "Probated and allowed for $ , and registered this day of , A. D. 19 ;" admits that he did not sign his name officially to said indorsement; but avers that the reason the clerk did not do so in the statutory form above provided was because of the fact that he but lately qualified as clerk, and was not informed as to his duties, and inadvertently neglected to indorse the claim as above set out; avers the fact to be that the claim was presented to the clerk for probate and registration in proper form and within the time allowed by law; that upon receipt of the same the clerk filed and entered same upon the register of claims, but by reason of his ignorance neglected at that time to indorse thereon the fact that the same was probated and allowed; that the said clerk in point of fact did allow, or intended to allow, the said claim, and was under the impression that he had done so by registering it. The said cross-petition then asks that the court enter an order, directing the clerk now to make the proper indorsement upon the claim, as of the date the same was actually presented to the clerk for probate, registration, and allowance. The cross-petition, asking for the above affirmative relief, was demurred to by petitioner. The demurrer was overruled, petitioner declined to answer it, and the Court entered a decree, ordering the clerk to make the indorsement as prayed for on the claim as of the time it was originally filed for probate. From this decree this appeal is prosecuted. It is the contention of counsel for the appellee that the cross-petition avers, and the demurrer admits, that the chancery clerk as a matter of fact intended to approve the claim of the appellee at the time he registered it and did orally approve it, and that it is within the power of the chancery court to enter an order to rectify this omission; that in the first appeal of this case this court merely held that the claim could not be paid unless the indorsement, as required by section 2106, appeared on the claim; and that this failure has now been rectified by the court. The appellant contends that the very life and vitality of a claim against the estate of a decedent depends upon the indorsement in accordance with section 2106 appearing upon the...