Tucker v. Tucker

• Decision Date: 08 January 1912
• Citation: 121 P. 125,21 Colo.App. 94
• Parties: TUCKER v. TUCKER.
• Court: Colorado Court of Appeals

121 P. 125

21 Colo.App. 94

TUCKER v. TUCKER.

Court of Appeals of Colorado

January 8, 1912

Appeal from District Court, Clear Creek County; Flor Ashbaugh Judge.

Action by William F. Tucker against B.M. Tucker, as executor of James F. Tucker, deceased. From a judgment of the county court disallowing his claim, plaintiff appealed to the district court, and from a judgment there for plaintiff defendant appeals. Affirmed.

S.B. Toney, M. Smith, and C.R. Brock, for appellant.

John J White, for appellee.

KING J.

William F. Tucker filed in the county court of Clear Creek county his claim under oath against the estate of James F. Tucker deceased, in the words and figures following, to wit:

"State of Colorado, Clear Creek County--ss.: In the County Court, ______ Term, A.D.190_.

_. William F. Tucker, being duly sworn, on oath says that the annexed account against the estate of James F. Tucker, deceased, amounting to the sum of twelve hundred thirty ($1230.00) dollars and no cents, is just, after allowing all just credits, and is now due and unpaid. Subscribed and sworn to before me this 19th day of December, 1905. Cora M. Hansel, Notary Public. [ Notarial Seal.] My commission expires December 3, 1909. To services as nurse and constant attendant from March 29th, 1902, to April 16th, 1904, at $50.00 per month, $1,230.00.

"Notary Public Certificate. United States of America, Indian Territory, Western District--ss.: I, R.P. Harrison, clerk of the United States Court for the Western District of the Indian Territory, hereby certify that Cora M. Hansel is a notary public within and for the Western District of the Indian Territory; that he was appointed such notary public by the court for said Western District, Indian Territory, for the term of four years beginning December 4th, 1905, and that due faith and credit should be given to all his acts as such notary public. In witness whereof I have hereunto set my hand and the seal of said court at Salpulpa, Indian Territory, this 20th day of December, A.D.1905. R.P. Harrison, Clerk. By O.M. Irelon, Deputy. [ U.S. Court Seal.]"

Upon the day set for hearing claims against the estate, the claimant being represented by his attorney and the executor being present in person and by his attorneys, the claim was objected to by the executor and disallowed by the court by indorsing the disallowance on the back of the claim, and by an order disallowing the same and taxing the costs to the claimant. Whereupon an appeal to the district court was prayed, allowed, and perfected, and the files relating to said claim were filed in the office of the clerk of the district court. The cause was regularly set for trial after a general appearance by the claimant and the executor. Upon the day set for trial, the executor through his attorneys moved to dismiss the appeal from the county court to the district court, for the alleged reason that the judgment from which the appeal was prosecuted was one of nonsuit, and that appellant did not within 10 days after the rendition of such judgment of nonsuit make application to the county court to set such judgment aside. The motion was denied, and thereupon trial was had to a jury; the executor and his attorneys participating therein. The jury returned a verdict in favor of the claimant for the full amount of his claim, and, judgment being rendered thereon, the executor prayed and was allowed an appeal to the Supreme Court.

1. The denial of appellant's motion to dismiss the appeal was not error. The judgment of the county court from which the appeal was taken to the district court is not a judgment of nonsuit. It is and evidently was intended to be a formal judgment of disallowance, and had the same force and effect as a judgment against the claimant that a judgment of allowance of the claim under the same circumstances would have had as against the executor. Corning v. Ryan, 3 Colo. 525, 531. If the provisions of section 183, Code of Civil Procedure, Revised Statutes of 1908, defining a judgment of nonsuit, are accepted for that purpose in this case, it clearly appears that the judgment entered does not come within any of the provisions of said section.

In Lusk v. Kershow et al., 17 Colo. 481, 485, 30 P. 62, it was held that section 1536, Revised Statutes 1908 (Sec. 1085, Mills' Ann. Stats; Session Laws of 1885, p. 158, § 1), does not apply to appeals from judgments in probate proceedings, and, unless that section has been made to apply by virtue of the provisions of section 7254, Revised Statutes of 1908, a motion to set aside the judgment of the probate court was not necessary in this case, even though the judgment was a judgment by default or of nonsuit. In our opinion it was not the intention of the Legislature to change the practice theretofore recognized in probate matters so as to make a motion to set aside a judgment by default or of nonsuit within 10 days after the rendition of such judgment, and the refusal of such motion, a condition precedent to the right of taking an appeal from the county court to the district court in probate matters.

Under the Constitution the district court had original jurisdiction of the subject-matter. Vance's Heirs v. Maroney et al., 3 Colo. 293, 295; Darling v. McDonald, 101 Ill. 370; Bradwell v. Wilson, Administrator, 158 Ill. 346, 42 N.E. 145. Therefore appellant's right to insist in this court upon his motion to dismiss the appeal was waived by participating in the trial of the cause on its merits after the motion was denied. Fairbanks, Morse & Co. v. Macleod, 8 Colo.App. 190, 45 P. 282; Schoolfield v. Brunton et al., 20 Colo. 139, 36 P. 1103; Smith et al. v. District Court, 4 Colo. 238.

2. If it was necessary upon the trial in the district court to comply with the provisions of section 7217, Revised Statutes of 1908, which requires the county court before giving judgment against an executor, administrator, or conservator to require the claimant to make oath that such claim is just and unpaid, that requirement was satisfied by ...