Commercial Bank v. Slater

21 Minn. 174 | Minn. | 1874

Berry, J.

The complaint in this action presents substantially the same state of facts presented in the other case between the same parties, decided at this term {ante p. 172,) -except that in this case, the plaintiff, instead of applying to the probate court for the allowance of its claim, has brought this suit against the administrator, alleging that there were never any assets of Heylin’s estate in Pennsylvania, out of which its judgment could be collected, but that said estate in Minnesota, now in the hands or under the control of the •defendant, is solvent and sufficient to pay all the debts of said estate ; but that defendant has refused to pay or recognize said judgment, though requested, etc.

The defendant’s general demurrer to the complaint, was, in our opinion, properly upheld. The remedy sought in this action being controlled by the lex fori, the plaintiff, not having- exhibited its claim to the commissioners, was “ forever barred from recovering ” the same, (in this state at any rate,) by § 14, ch. 53, Gen. Stat.

Section 50 of the same chapter further enacts that ‘‘ in no other case, except such as are expressly provided for in this chapter, shall any action be commenced or prosecuted against an executor or administrator.” The plaintiff does not bring itself within any case so expressly provided for, nor claim to do so, as far as we can discover. The demurrer being supported by both of these provisions of statute, the order sustaining the same is affirmed.