Wormward v. Brown

• Decision Date: 09 December 1930
• Docket Number: 5629
• Citation: 50 Idaho 125,294 P. 331
• Parties: T. P. WORMWARD, Appellant, v. ELLA M. BROWN, Executrix of the Estate of THEODORE BROWN, Deceased, Respondent
• Court: Idaho Supreme Court

294 P. 331

50 Idaho 125

T. P. WORMWARD, Appellant, v. ELLA M. BROWN, Executrix of the Estate of THEODORE BROWN, Deceased, Respondent

No. 5629

Supreme Court of Idaho

December 9, 1930

EXECUTORS AND ADMINISTRATORS - CLAIMS AGAINST ESTATE - ACTION TO RECOVER-APPEAL AND ERROR-DECISION OF PROBATE COURT-SCOPE OF REVIEW.

1. On appeal from judgment of probate court sustaining demurrer to complaint, it was duty of district judge to determine issue of law presented by demurrer, independently of what transpired in probate court.

2. On appeal from judgment of district court sustaining demurrer to complaint after appeal from probate court judgment, supreme court is concerned only with correctness of district court's ruling.

3. Judgment sustaining demurrer to complaint based on wrong premise should not be reversed on appeal, if good on any premise.

4. Claim against estate must be filed and disallowed before action can be brought within three months after disallowance (C. S., sec. 7584, as amended by Laws 1929, chap. 280, sec 13).

5. Executor's failure to act on filed claim within statutory time is not disallowance of claim authorizing suit therein (C. S., sec. 7584, as amended by Laws 1929, chap. 280, sec 13).

6. Complaint on claim against estate not showing disallowance by executrix did not state cause of action (C. S., sec. 7584, as amended by Laws 1929, chap. 280, sec. 13).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action to recover $ 142.85 from the estate of Theodore Brown, deceased. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

T. P Wormward, for Appellant, cites no authorities on points decided.

James A. Wayne, for Respondent.

If a demurrer sustained by the trial court on an erroneous ground is good on any ground, the ruling will not be reversed. ( Gagnon v. St. Maries Light etc. Co., 26 Idaho 87, 91, 141 P. 88; Feehan v. Kendrick, 32 Idaho 220, 225, 179 P. 507.)

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This action was originally filed in the probate court of Shoshone county to recover $ 142.85 from the estate of Theodore Brown, deceased. The claim sued upon was filed with the executrix prior to instituting the action but was never acted upon by the executrix. In this behalf the complaint states:

" . . . . that on the 12th day of July, 1929, the claim herein set forth verified by the oath of claimant and upon which this action is founded, was duly presented in writing by plaintiff to defendant as such executrix for allowance, that subsequently and during the time allowed by law for the allowance or rejection of said claim against said estate no action was ever taken by said defendant thereon either by way of allowance or rejection of the same in part or the whole thereof, neither was plaintiff notified within the time allowed by law or at all of the rejection of said claim or any part thereof, . . . . "

A general demurrer was filed in the probate court and upon the hearing the probate court sustained the demurrer. The judgment entered by the probate judge upon the order sustaining the demurrer recites that the demurrer was sustained upon the ground "that said action was not begun within the time required by law." Upon appeal to the district court the district judge, considering the same complaint and the same demurrer, sustained the demurrer and entered a judgment dismissing the action without stating the grounds upon which the demurrer had been sustained, either in the order sustaining the demurrer or in the judgment.

The case is appealed and upon the assignments of error it is claimed: first, that the court erred in sustaining the demurrer to the complaint; and second, that the court erred in affirming the judgment of the probate court. Appellant's argument is mainly upon the point that it was error for the district court to affirm the probate court, because it appeared from the judgment entered by the probate court that the reasons assigned by the probate judge were erroneous, that is to say, it is claimed the district judge was limited in considering the demurrer to an examination of the grounds assigned by the probate judge for his ruling.

The district judge sustained the demurrer without passing upon the correctness of the probate court's reasons for the decision in the probate court. Upon appeal of course the complaint and the demurrer, as filed in the probate court, were transferred to and filed in the district court, and it was the duty of the district judge to determine the issue of law presented by the complaint and the demurrer thereto independently of what had transpired in the probate court. Upon appeal from the order sustaining the demurrer and the judgment entered thereon in the district court, this court is not concerned with the reasons assigned by the probate judge for the ruling in the probate court, but we are concerned only with the correctness of the ruling by the district court upon the issue of law raised by the complaint and the demurrer thereto which were before the district court. More than this, if the demurrer had been sustained in the district court on a wrong premise, but is good on any premise, the decision would not be reversed on appeal. (Gagnon v. St. Maries Light & Power Co., 26 Idaho 87, 141 P. 88; Feehan v. Kendrick, 32 Idaho 220, 179 P. 507.) If, therefore, the complaint fails to state a cause of action the judgment of the district court must be affirmed.

Section 5466 of the Revised Statutes of 1887 read in part as follows:

"When a claim accompanied by the affidavit required in this chapter, is presented to the executor or administrator, he must indorse thereon his allowance or rejection, with the day and date thereof. If he allows the claim, it must be presented to the probate judge for his approval, who must, in the same manner, indorse upon it his allowance or rejection. If the executor or administrator, or the judge, refuse or neglect to indorse such allowance or rejection...