3 Colo. 525 | Colo. | 1877
Prom the judgment of the court below, dismissing the appeal upon the agreed statement of facts, the plaintiff appeals to this court, and the sole question presented by the assignment of errors and upon the record is, “did the district court err in dismissing the appeal? ” If the case was properly pending in' the district court, then upon the agreed facts there was an undisputed claim for a certain sum, for which the court was bound to render a' judgment in favor of the plaintiff and against the defendant. But since the court refused to render such judgment, we must infer that the sole reason for such refusal, and for dismissing the appeal was, that the case was not properly depending in that court. Hence it becomes necessary for us to notice the character of the proceedings in the probate court and the appeal therefrom. The claim of the plaintiff in the probate court was for the amount due on a promissory note, duly presented and to be allowed or disallowed against an estate. The claim was verified, and no objection seems to have been made by the administrator, or any other person interested, and appears to have been presented in accordance with section 127 of the act concerning wills, executors and administrators, R. S., 676. That section provides that if such objection be made to the claim, or if cause is shown by the claimant, the hearing may be continued, and the claim “be.adjudicated as is required in other cases,” that is to say in litigated cases; but without such objection the court is to determine it at the time, of which notice has been given.
In this case, although the claim does not appear to have been disputed, yet, as the claim was verified before the day set for hearing, a presumption might arise that the continuance was had on account of an objection to the allowance of the claim. So far as the record shows, the court ex mero
The manner of exhibiting such claims against an estate as prescribed in section 131 and elsewhere, in the act of the Revised Statutes referred to, does not constitute the presentation of such claims for allowance, actions or suits at law, in the ordinary sense of these terms, although when the allowance of such claims is contested it may ripen into, or become the basis of a suit proper. The claimant and the administrator do not stand in the relation of plaintiff and defendant until such contest arises, and the claim becomes thereby the subject of litigation. Giving to this so-called default the most liberal construction possible, it can be regarded as amounting to no more than a nonsuit, and without prejudice to the claimant. There was no judgment or decision either allowing or disallowing the claim, and the circumstance of thereafter omitting the matter from the docket in no way impaired the right of the claimant, who, having presented his claim according to the statutory requirement, was entitled to be heard thereon any time afterward until the court had determined upon it, either by its allowance or disallowance. He was, therefore, entitled to have it determined by the probate court when he moved for the allowance of his claim upon due notice to the administrator, on the 15th day of December, 1875. Was the refusal of the court at that time to allow the claim such a judgment or decision as could be appealed from to the district court ? We think it was. A formal entry of judgment in such cases, after the manner of judgment ih suits at law, is not absolutely required. It is sufficient if it plainly indicates the determination of the court to either allow or disallow the claim. The proceeding in such cases is indicated by the statute which prescribes the mode and manner of presenting, hearing and determining such claims: See R. S., p. 676, §§ 127 to 135. § 134 is in these words: “ The pro
Reversed.