Thomas' ex'or v. Thomas
| Decision Date | 03 January 1854 |
| Citation | 54 Ky. 178 |
| Court | Kentucky Court of Appeals |
| Parties | Thomas' Executor <I>vs.</I> Thomas. |
APPEAL FROM NELSON CIRCUIT.
This suit was brought by B. H. Thomas, against the executors of R. G. Thomas, to recover compensation for personal services rendered to the testator. The justice of the claim was denied, and limitation relied on, and a trial had and verdict and judgment for $500 damages. Defendants moved a new trial, which was overruled, and they have brought the case up for revision, complaining of errors in the progress of the trial, and in refusing a new trial.
W. Johnson, for appellant —
Grigsby & Newman, on the same side —
James Harlan, for appellee — Judge CRENSHAW delivered the opinion of the Court —
The 35th section of article 2, chapter 37, of the Revised Statutes, requires that: "All demands against the estate of a decedent shall be verified by the written affidavit of the claimant, or in his absence from the state, by his agent, or if dead, by his personal representative, stating that the demand is just, and has never, to his knowledge or belief, been paid, and that there is no just off-set or discount against the same, or any usury embraced therein."
The 36th section of the same article and chapter, provides that:
The Code of Practice, page 123, section 473, declares that: "No suit shall be brought against a personal representative until after a demand is made of him, accompanied with the affidavit required."
This suit is brought by B. H. Thomas against the executors of Redman G. Thomas for services averred to have been performed by him for the testator in his life time. No separate affidavit appears to have been made and presented to the executors, nor any demand made for payment before the commencement of the suit, as required by the provisions above quoted. But the petition, without averring any demand, avers all else required to be contained in an affidavit; and the petition is sworn to. This, according to the express provisions of the Revised Statutes and of the Code, is not a compliance therewith. But the defendants appeared and answered without making any objection for want of a previous demand, accompanied by an affidavit. When, however, the plaintiff was through his testimony, and no proof having been made of a demand and of the requisite affidavit, the defendants moved the court to instruct the jury to find for them. The court overruled this motion, and after the testimony upon both sides was closed, the defendant moved the following instruction to the jury: "That they cannot find for plaintiff, unless they find from the proof, the claim sued on had been duly certified by the affidavit of the plaintiff in writing, and a demand made before suit for the debt sued for." This instruction the court refused to give. And the first question presented for our consideration is, whether the court erred in its refusal to instruct the jury as in case of a non-suit, and in refusing to give said instruction to the jury. We think the court committed no error in overruling both of said motions.
It was not necessary that the petition should contain any averment that a proper affidavit had been presented to the defendants, and a demand made of them for payment. The cause of action was complete, and the petition would be good without such averment. A cause of action may exist, and yet it may be necessary to take some preliminary step, before a party has a right to institute a suit. The steps required by the above recited sections of the Revised Statutes and of the Code, do not affect the merits of the action. A just demand, in and of...
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