Taggart v. Tevanny

• Decision Date: 01 May 1891
• Citation: 27 N.E. 511,1 Ind.App. 339
• Parties: Taggart v. Tevanny.
• Court: Indiana Appellate Court

1 Ind.App. 339

27 N.E. 511

Taggart

v.Tevanny.

Appellate Court of Indiana.

May 1, 1891.

Appeal from circuit court, Washington county; T. L. Collins, Judge.

A. Dowling, J. K. Marsh, H. Burtt, and E. J. Taggart, for appellant. F. B. Burke, for appellee.

Reinhard, J.

The appellee filed in the office of the clerk of the Clark circuit court a claim against the estate of Elizabeth Wathen, the appellant's decedent. After the claim had been placed upon the issue docket the claimant, in open court, and by leave of court, filed a second paragraph of the statement of the claim. Thereupon the appellant moved the court to strike from the files each one of said paragraphs, which motion the court overruled. The venue of the cause was then, on application and affidavit of appellant, changed from the Clark circuit court to the Washington circuit court, where there was a trial by jury, and a verdict in favor of the claimant for $19,250. Appellant then moved to vacate the proceedings in each of said circuit courts, and also moved for a new trial, both of which motions were overruled. The appellant then made motions in arrest of judgment, for a modification of the judgment, and to tax costs, all of which were overruled. Proper exceptions were reserved to each ruling. Errors are assigned as follows: “(1) The complaint does not state facts sufficient to constitute a cause of action; (2) the Clark circuit court had not jurisdiction of the subject-matter of the action; (3) the Clark circuit court had not jurisdiction of the person of the appellant; (4) the Washington circuit court had not jurisdiction of the subject-matter of the action; (5) the Washington circuit court had not jurisdiction of the person of the appellant; (6) the court erred in overruling motion to strike from the files the first paragraph of appellee's claim and complaint; (7) the court erred in overruling motion to strike from the files the second paragraph of appellee's claim and complaint; (8) the court erred in overruling motion to vacate verdict and proceedings in Washington circuit court; (9) the court erred in overruling motion for new trial; (10) the court erred in overruling motion in arrest of judgment; (11) the court erred in overruling motion to modify judgment; (12) the court erred in overruling motion to tax costs against appellee.” We will take up these assignments and treat them in the order in which they are presented in the brief of the appellant.

The only manner in which the complaint or claim was assailed before verdict was by the motion to strike the claim from the files, and the only ground of objection then assigned was that neither of the paragraphs was properly verified. The manner in which the complaint or statement of the claim has been assailed since the verdict is- First, by motion in arrest of judgment; and, second, by assignment of error that the complaint does not state facts sufficient to constitute a cause of action. For the sake of convenience and directness we will consider all these objections together. The specific objections which are here urged to the complaint or statement are these: “(1) It does not aver that the services were rendered at the request of the decedent. (2) The item of fifty dollars advanced for the use of decedent while he was under guardianship is not a proper claim against the estate. (3) The claim is not properly made out against the legal representative of the decedent, and no proper defendant was named. (4) The claim was not verified in the form prescribed by the statute. (5) The second paragraph is subject to the additional objection that the statement shows upon its face that the pretended contract upon which it is predicated is void.” The first paragraph, or, perhaps, more properly speaking, the original statement, of the claim, is in these words and figures:

+-----------------------------------------------------------------------------+
                ¦Estate of Elizabeth Wathen to Catherine Tevanny, Dr.                         ¦
                +-----------------------------------------------------------------------------¦
                ¦To services rendered said Elizabeth Wathen, dec'd during her         ¦       ¦
                ¦life-time, as her general housekeeper, for nursing her and her son,  ¦       ¦
                ¦Athanaseus Wathen, (who made his home with her,) during all her      ¦$32,650¦
                ¦sickness; for attendance upon all their wants, and general care of   ¦00     ¦
                ¦household affairs from 1st day of April, 1861, to 17th day of July,  ¦       ¦
                ¦1888, a period of 326 1/2 months, at one hundred dollars per month   ¦       ¦
                +---------------------------------------------------------------------+-------¦
                ¦For money advanced during last sickness of said Elizabeth Wathen for ¦50 00  ¦
                ¦her exclusive use and benefit during absence of her guardian         ¦       ¦
                +---------------------------------------------------------------------+-------¦
                ¦                                                                     ¦$32,700¦
                ¦                                                                     ¦00     ¦
                +---------------------------------------------------------------------+-------¦
                ¦Above account is entitled to credits for money paid said claimant by ¦$ 5,000¦
                ¦said Elizabeth Wathen and John Adams, her guardian, in the sum of    ¦00     ¦
                +---------------------------------------------------------------------+-------¦
                ¦                                                                     ¦$27,700¦
                ¦                                                                     ¦00     ¦
                +-----------------------------------------------------------------------------+
                

The question presented is, was this statement sufficient, without the express averment that the services were rendered at the request of the decedent on an agreement that they should be paid for? The statute provides that “no action shall be brought by complaint and summons against the executor or administrator of an estate, for the recovery of any claim against the decedent; but the holder thereof, whether such claim be 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.” Rev. St. 1881, § 2310. It has been decided that such a statement as the one contemplated under this section must contain all the facts necessary to show prima facie that the estate is lawfully indebted to the claimant, or it will be held bad. Walker v. Heller, 104 Ind. 327, 3 N. E. Rep. 114; Hathaway v. Roll, 81 Ind. 567;Pulley v. Perfect, 30 Ind. 379;Thomas v. Merry, 113 Ind. 83, 15 N. E. Rep. 244; Windell v. Hudson, 102 Ind. 521, 2 N. E. Rep. 303. Was the statement sufficiently “succinct and definite” to meet the requirements of the statute? Ordinarily, a complaint for work and labor, to be sufficient to withstand a demurrer, must show that the services performed were not merely voluntary, and hence it must appear that there was an agreement to pay, or circumstances from which the same may be properly inferred. Warring v. Hill, 89 Ind. 497. We think the statement contains language from which such an inference may properly be drawn. It is averred that the services were rendered, and for whom and by whom they were rendered, the nature of the services, the length of time they continued, and their value. In addition to these averments in the body of the claim, the affidavit attached to it contains the statement that the amount stated “is now justly due and owing” to the claimant. It has been held repeatedly that the statement of claims contemplated by the statute is sufficient if it apprises the defendant of the nature of the claim, the amount demanded, and contains enough substance to bar another action for the same demand. Davis v. Huston, 84 Ind. 274;Post v. Pedrick, 52 Ind. 490;Ginn v. Collins, 43 Ind. 274;Hannum v. Curtis, 13 Ind. 206;Lockwood v. Robbins, 125 Ind. 398, 25 N. E. Rep. 455. The case of Ginn v. Collins, supra, is much in point. There the statement of the claim was as follows: “The estate of Elijah Collins, dec'd, Dr., in account with George W. Collins, to board, services, and maintenance in taking care of and providing for said Elijah Collins, and for care and provisions for him in his last illness to the time of his death, February 24, 1870, said board, care, and maintenance extending from October 10, 1867, to February 24, 1870, $1,200.” This statement is followed by a bill of particulars, in which the several items are specifically set forth. There was a demurrer to the statement of claim for the want of sufficient facts to constitute a cause of action. The demurrer was overruled, and the court held that the statement contained enough to apprise the defendant of the nature of the claim and the amount demanded, and to bar another action for the same demand. The court, quoting approvingly from Hammond v. Curtis, supra, places these statements of claims against decedents' estates on a footing with complaints in causes originating before justices of the peace, where it has always been held that, if such complaints contain the elements above named, they will be deemed sufficient. Railway Co. v. Stanley, ante, 316, (at present term of this court.)

The appellant also urges an objection to the item of $50 in the claim, which is alleged to have been advanced by the appellee for the use of Mrs. Wathen. The objection is not tenable. If any part of the claim is sufficient the complaint or statement cannot be held bad because there are individual items which, when taken singly, would not amount to a good cause of action. No authorities need be cited in support of a proposition so well settled.

We pass to the objection that the personal representative is not made a party to the action. As we have already seen, the statute provides that there shall be neither complaint nor summons, but that the statement shall be filed in the office of the clerk. When this is done the claimant has done all the law requires of him. It is not necessary to...