12 Or. 244 | Or. | 1885
The respondent alleges in her complaint that said George E. Aiken died in said county on the 23d day of
Tbe case comes here simply upon tbe pleadings and judgment, no bill of exceptions having been made. Tbe grounds of error relied upon are confined to alleged defects in tbe complaint, one of which is tbe form of the claim alleged to have been presented to tbe appellants, as such administrators, and tbe other is that tbe complaint does not show that six months bad expired after tbe granting of the letters of administration, and before tbe time of tbe commencement of the action. Tbe appellants, after their demurrer to the complaint was overruled, answered over. This did not waive any
The objection to the form in which the claim is stated, if well taken, would go to .the cause of action, and render the complaint defective. But we do not think that the objection in this case was fatal. The claim was not made out in the usual way. The ordinary mode in making out claims against the estate of a deceased party is to state an account, and then verify it. In this case the claim was included in a general affidavit. The respondent deposed to the fact that the estate was indebted to her in the amount; that there were no legal set-offs or counter-claims existing against it; that no payment had been made thereon, and that the amount was due her. This is the substance of the statutory requirements. Besides, the appellants ought not to be permitted to complain upon that ground. They rejected the claim generally. Their refusal to allow it should have been for the special reason that it was not formally made out, otherwise they should be deemed to have waived the objection.
The other ground of objection to the complaint, that it does not show that six months intervened between the granting of letters of administration and the time of the commencement of the action, is untenable. The record shows that more than six months elapsed between the issuance of the letters and the commencement of the action, although the complaint does not show the particular time when the appellants qualified; but we are of the opinion that after verdict it will .be inferred that they qualified immediately after the letters issued. It .certainly was their duty to have done so; and we think, under the circumstances, we may presume that they performed their duty. They
The record fails to disclose any error; and the judgment appealed from will therefore be affirmed.