Warfield v. Gardner's Adm'rs
| Decision Date | 08 December 1881 |
| Citation | 3 Ky.L.Rptr. 423,3 Ky.L.Rptr. 760,79 Ky. 583 |
| Parties | Warfield, & c., v. Gardner's adm'r. |
| Court | Kentucky Court of Appeals |
1. In order to enable a defendant to plead, as a counter-claim or set-off, a claim against the estate of a decedent, it must be verified and proved in the manner required by law in the case of claims sued upon by original action, but demand may be dispensed with.
2. An affidavit in the body of the answer is not sufficient. The claim should be verified and proved in the manner required by law and filed with the answer.
3. The allegation in the petition that the plaintiffs were, by an order of the Hardin county court, appointed administrators and qualified as such, is a substantial compliance with section 122, Civil Code, as the law raises the presumption that the order was duly made.
4. The failure of the petition to state facts showing that the Hardin county court had jurisdiction to make the order should have been taken advantage of by special demurrer.
APPEAL FROM HARDIN CIRCUIT COURT.
WILSON & HOBSON FOR APPELLANTS.
1. The petition does not state facts showing that the Hardin county court had jurisdiction to appoint appellees administrators nor does it allege that the order of appointment was " duly" made. (Sec. 122, Civil Code.)
2. When a claim against a decedent's estate is pleaded as a set-off, demand is not necessary.
J. C POSTON FOR APPELLEES.
1. Any defect in the petition is cured by the answer. (Civil Code, secs. 134, 756; Combs, & c., v. Jefferson Pond Draining Co., 3 Met., 72; Louisville and Portland Canal Co. v. Murphy's adm'r, 9 Bush, 529 and 530.)
2. A claim against a decedent's estate, pleaded as a set-off, should be verified and proved, and payment demanded, as in case of claims sued on by original action. (Civil Code, sec. 732, subsec. 34; sec. 437; Gen. Stat., chap. 39, art. 2, secs. 35 to 39.)
3. The affidavit contained in the body of the answer was not sufficient. The claim should have been so verified and proved as to be a voucher for appellees. (Leach v. Kendall's adm'r, 13 Bush, 424.)
A. B. MONTGOMERY FOR APPELLEES.
1. The defect in the petition, because of its failure to state facts showing that the Hardin county court had jurisdiction to appoint the plaintiffs as administrators, should have been taken advantage of by special demurrer. (Sec. 92, Civil Code.)
2. Even though demand may be dispensed with where a claim against a decedent's estate is pleaded as a set-off, it is certain that verification and proof cannot be dispensed with.
3. Appellant's cause of action does not arise on a contract, judgment, or award, and therefore cannot be pleaded as a set-off.
There is a response to petition for re-hearing.
This is an action by appellees, administrators of the estate of A. S. Gardner, deceased, upon a promissory note given by appellants.
At the September term, 1877, of the court, a general demurrer to the petition was filed and overruled. Thereupon appellants filed their answer, in which one of them, Warfield, pleaded a demand against the estate for rent of land as a set-off. At the February term, 1879, a rule was made by the court, requiring Warfield to show that he had made a demand of appellees for payment, accompanied by his affidavit and proof of the claim as required by law in such cases.
At the same term, appellants having failed to respond to the rule, judgment was rendered making the rule absolute, and dismissing the set-off, and also for the amount of the debt claimed in the petition. But upon grounds filed, a new trial was granted.
At the August term, 1879, Warfield filed a response to the rule, stating, in substance, that he had, on the 20th of August, 1879, demanded of the administrators payment of his claim, and also filed copies of certain title papers and affidavits of other persons in regard to the land, the rents from which he claimed as set-off.
Upon filing the response, appellants asked leave to re-file their answer and set-off, which was refused, and judgment again rendered for the debt claimed in the petition.
From that judgment this appeal has been taken.
The only questions presented by the assignment of errors necessary to be considered are--
1st. Whether the demurrer to the petition was properly overruled.
2d. Whether the court erred in refusing to permit appellants to re-file their answer and set-off.
First. The allegation in the petition, that appellees were, by an order of the Hardin county court, appointed administrators of A. S. Gardner, deceased, and qualified as such, is a substantial compliance with section 122, Civil Code. The law raises the presumption that the order when made was " duly" made.
The defect in the petition, on account of the accidental omission of the words " the defendants," the subject of the verb " agreed," does not affect the substantial rights of appellants, because they were neither prejudiced or misled thereby. " The omission of those things which are silently expressed is of no consequence."
The objection that the petition fails to state facts showing...
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