Ullman Co. v. Adler

• Decision Date: 28 February 1921
• Docket Number: 4279.
• Parties: ULLMAN CO. v. ADLER.
• Court: Montana Supreme Court

196 P. 157

59 Mont. 232

ULLMAN CO. v. ADLER.

No. 4279.

Supreme Court of Montana

February 28, 1921

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.

Action by the Ullman Company against Johana Haler, administratrix of the estate of Ludwig Adler, deceased. Judgment dismissing the complaint, and from an order denying its motion for new trial, plaintiff appeals. Order affirmed.

J. O Davies, of Butte, for appellant.

W. N Waugh, of Butte, for respondent.

HOLLOWAY J.

This action was brought to recover a balance of $725.83, alleged to be due for goods, wares, and merchandise sold and delivered by plaintiff to Ludwig Adler in his lifetime. Upon the trial of the cause, the court excluded the creditor's claim, which had been presented to and disallowed by the administratrix, upon the ground that it was not verified properly, and, at the conclusion of plaintiff's case granted a nonsuit and rendered and caused to be entered a judgment dismissing the complaint. The plaintiff has appealed from an order denying its motion for a new trial.

It is elementary that without proof of the presentation and disallowance of its claim plaintiff had no standing in court (sections 7530 and 7532, Rev. Codes), and it follows that the only question for determination is: Was the claim verified as required by law? So much of section 7526, Revised Codes, as is material here, with numerals inserted to indicate the several requirements, follows:

"Every claim which is due, when presented to the executor or administrator, must be supported by the affidavit of the claimant, or some one in his behalf, [[1] that the amount is justly due, [2] that no payments have been made thereon which are not credited, and [3] that there are no offsets to the same, to the knowledge of affiant. If the claim be not due when presented, or be contingent, [4] the particulars of such claim must be stated. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit [5] the reason why it is not made by the claimant."

The affidavit attached to the claim is in the following form:

"State of Ohio, County of Hamilton--ss.:

The undersigned, J. A. Braun, of lawful age, being first duly sworn, states on oath that he is bookkeeper for the Ullman Company, an Ohio corporation, the owners of the claim against Ludwig Adler estate of Butte, Montana, hereto attached and made part hereof; that the same and every item thereof is justly due; that the consideration therefor is goods and merchandise sold and delivered by said claimant to said debtor at his special request, at the dates and the prices more fully set forth in the account hereto attached; that the same is in every respect lawful, just, true and correct; that there is owing, due and unpaid on said claim the sum of seven hundred twenty-five and 83/100 dollars ($725.83) with interest at the rate of ______ per centum per annum from the ______ day of ______, 19--, that there is no discount, set-off or counterclaim against said account, and no usury embraced therein; and that said claimants have no security whatever for the same.

J. A. Braun.

Subscribed and sworn to before me this 23d day of Jan., 1912.

Edw. M. Schwein.

Notary Public, Hamilton County, Ohio.

My commission expires Dec. 2, 1913.

[Notarial Seal.]"

The court's order, sustaining the objections interposed to this verification, is a general one, and must be upheld if it can be upon any of the grounds mentioned.

1. The affidavit omits altogether the statement required by the statute "that no payments have been made thereon which are not credited." It is argued, however, that since this claim is itemized and the debits and credits are made to appear, the statement that the claim "is in every respect lawful, just, true and correct" necessarily precludes the idea that there are any other credits than those mentioned. The same arguments, however, would apply to every character of claim, whether itemized or not. The affidavit states only the conclusions of the affiant, whereas the statute requires that the facts shall be stated from which the administrator and the judge of the court may determine whether the claim is one which should be considered. Again it is suggested that the utmost liberality should be indulged in construing the statute above, since it provides that--

"The executor or administrator may also require satisfactory vouchers or proofs to be produced in support of the claim."

If it was intended that the vouchers or proof should supply deficiencies in the affidavit, there is not any reason apparent for the affidavit at all. Every fact which the statute declares shall appear from the affidavit could be established by the vouchers or proof. The affidavit on the one hand, and the vouchers and proof on the other, perform distinct and independent functions. The affidavit is not required as evidence of the existence of the debt, but as evidence of good faith, to prevent the presentation of spurious or fictitious claims. Williams v. Purdy, 6 Paige (N. Y.) 166. The office to be performed by the vouchers or proof is to establish the indebtedness to the satisfaction of the proper officers.

There is language employed in the opinion in Swain's Estate, 67 Cal. 637, 8 P. 497, which, standing alone, would lend support to the view that the entire omission of one or more of the statutory requirements above would not vitiate the claim, and that language was quoted, apparently with approval, by this court in Empire State Mining Co. v. Mitchell, 29 Mont. 55, 74 P. 81. The language was not pertinent, and the use of it was unfortunate. As pointed out in the latter case of Perkins v. Onyett, 86 Cal. 348, 24 P. 1024, the...