Walker v. Heller
| Decision Date | 29 October 1885 |
| Docket Number | 11,174 |
| Citation | 3 N.E. 114,104 Ind. 327 |
| Parties | Walker, Administratrix, v. Heller et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Dec. 31, 1885.
From the Hancock Circuit Court.
The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrer to Marsh's claim, and the motion for a new trial and for further proceedings.
J. A New and J. W. Jones, for appellant.
A. L Ogg, for appellees.
On the 12th day of December, 1882, the appellee Thomas L. Marsh filed his verified claim against the estate of Meredith Walker, deceased, of which estate the appellant was then and since administratrix, in the clerk's office of the court below. Afterwards, such claim having been disallowed by appellant and transferred to the issue-docket for trial, on the application of the appellee Moses Heller, he was made a defendant herein, and thereupon he filed his cross complaint against his co-appellee Marsh and the appellant. The cause was then put at issue and tried by the court, and a finding was made in favor of Marsh and Heller, and against the appellant administratrix aforesaid, in the sum of $ 1,085.84. Over appellant's motion for a new trial, the court made an allowance against her decedent's estate, on its finding, in favor of appellee Heller, on the 10th day of April, 1883, and from the judgment below this appeal was taken by filing a transcript of the record in the clerk's office of this court, on the 12th day of September, 1883.
In this court, the appellant has assigned errors, calling in question several of the rulings or decisions of the trial court.
The appellees have filed in this cause several motions, which first demand our attention, and must first be considered and decided.
The records of this court show that, on the 27th day of November, 1883, which was the call-day of the November term, 1883, of the court, the appellees filed a motion to strike this cause from the docket. Under the uniform practice of the court, this motion ought to have been presented and passed upon at the first sitting of the court after call-day and not later than the 12th day of December, 1883. But the record and motion appear to have been at once withdrawn, and afterwards withheld from the clerk's office of this court, by counsel engaged in the cause, for nearly six months after the motion was filed, or until on or about the 14th day of May, 1884. On the day last named, the entry of the clerk upon the record shows that the appellees' motion to strike the cause from the docket was overruled by the court. On the call-day of the May term, 1884, of this court, to wit, on May 27th, 1884, the appellees as well as the appellant appeared, by their respective attorneys of record, and, in open court, agreed to the submission of the cause to the court for decision. Thereafter, on the 12th day of July, 1884, the appellees filed another motion to dismiss the appeal herein, and, on the 26th day of May, 1885, a further motion to correct the records of this court in relation to this appeal, and, on the 8th day of June, 1885, a motion for leave to substitute a copy for the original motion to strike this cause from the docket of this court, which original motion as alleged had been lost from the files and could not be found.
Briefs have been filed and oral arguments made by the counsel on both sides for and against the appellees' motions. Upon careful consideration of the facts above recited, and of the decisions of this court prior to the taking of this appeal, and, indeed, until June 26th, 1884, in relation to appeals by executors or administrators under the provisions of the statute regulating the settlement of decedents' estates, we are of opinion that common fairness and justice to the appellant require that the appellees' pending motions should be overruled, and that we should consider and decide such questions in the case as are fairly presented by her assignment of errors. In Bender v. Wampler, 84 Ind. 172, the appeal was by an executor from an allowance against his decedent's estate, on the 6th day of February, 1880. The appeal was taken by filing a certified transcript of the record of the cause in the office of the clerk of this court, on the 20th day of January, 1881, seventeen days before the expiration of one year from the rendition of the judgment appealed from. On the 18th day of July, 1881, the appeal was submitted by the agreement of the parties, for the decision of this court. Before such submission, to wit, on the 25th day of May, 1881, the appellee filed a written motion to dismiss the appeal, "for the reasons that appellant had filed no appeal bond, and the appeal had not been perfected within thirty days after the decision." The appellant was not notified of this motion, apparently, until in January, 1882, and the motion was neither considered nor decided until the final decision of the cause on its merits, on the 23d day of November, 1882. It was there held by the court, (1) that an executor or administrator had a right to appeal to this court, without filing an appeal bond, "at any time within one year after the decision," and (2) that "submission of a cause by agreement waives a motion theretofore made for the dismissal of an appeal for the want of a bond." See, also, the cases of Bake v. Smiley, 84 Ind. 212, and Davis v. Huston, 84 Ind. 272, in each of which the right of an executor or administrator to appeal, without filing an appeal bond at any time within one year after the decision appealed from, is expressly recognized and upheld.
It is true that, in each of the cases cited, the appeals were governed by the provisions of sections 189, 190 and 193 of the act of June 7th, 1852, providing for the settlement of decedents' estates. But, in Bender v. Wampler, supra, and Bake v. Smiley, supra, reference was made to sections 2454, 2455 and 2457, R. S. 1881, in force since September 19th, 1881, as governing appeals thereafter taken from any decision "growing out of any matter connected with a decedent's estate," but without an intimation even that these sections would limit the time within which an executor or administrator must perfect his appeal. Thus stood the law, as declared by this court, at the time the appellant, in accordance therewith, perfected her appeal in the case in hand, and at the time the appellees' first motion to strike this cause from the docket was overruled by this court. That ruling of the court, whether erroneous or not, is the law of this case and must stand, and the appellees' subsequent motions, founded upon Yearley v. Sharp, 96 Ind. 469, must be and are overruled.
We come now to the consideration of the questions presented by the errors assigned by the appellant upon the record of this cause. The first error complained of in argument by appellant's counsel is the overruling of her demurrer to the claim or complaint of the appellee Thomas L. Marsh.
In his claim or complaint the appellee Marsh alleged that about the beginning of the year 1874 the First National Bank of Knightstown, Indiana, held a certain promissory note for the sum of $ 520, executed jointly by himself and one Joseph B Dunbar, as principals, on which note Meredith Walker, then deceased, was accommodation endorser; that afterwards, in 1874, appellee Marsh, as sole principal, executed another promissory note for $ 1,000, bearing ten per cent. interest, also endorsed by Meredith Walker, and negotiated by appellee Marsh to his co-appellee, Moses Heller; that when the $ 520 note fell due Meredith Walker, to preserve his own credit, paid it off; that appellee Marsh at that time was engaged in running a saw-mill, and, being in failing circumstances, the said Walker, to secure himself from loss by reason of his payment to the Knightstown bank, and his endorsement on Heller's note, bargained with and engaged the appellee Marsh to furnish him a certain bill of walnut lumber, of the agreed value of $ 1,166, which was afterwards, during 1874, on the order of said Walker, delivered by appellee Marsh to one Thomas Frederick; that, in an accounting had between said Walker and Marsh about the beginning of 1875, as an adjustment of the walnut lumber transaction, it was agreed by the parties, Walker and Marsh, that out of the sum due from Walker to Marsh, on account of said walnut lumber, Walker should deduct the moiety of the sum paid by him to the Knightstown bank, with interest, etc., amounting by that time to about $ 270, relying solely on said Dunbar for the payment of the other half of his said claim, arising out of said bank transaction; and that the residue of the sum due Marsh for said walnut lumber should be applied by said Walker as a partial payment of the $ 1,000...
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