Emele v. Williams, 10 Haw. 123

Emele v. Williams

10 Haw. 123 | Haw. | 1895

OPINION OF THE COURT BY

JUDD, C.J.

It appears by the summons in tbis case that an action of replevin was brought by plaintiff in the District Oourt of Hamakua, Hawaii, against the defendant, claiming that he had wrongfully and contrary to the rights of the plaintiff taken possession of and wrongfully withheld certain horses, nine in number (describing them), the property of the plaintiff. The defendant pleaded the probate statute of limitations and showed the Court that a “claim” for the horses had been sent him by plaintiff which he had rejected and that action thereon had not been brought within two months thereafter. This plea was overruled and on the evidence the magistrate found for *124tlie plaintiff and awarded lier tlie possession of tlie horses. The defendant took an appeal to the Circuit Court, Fourth Circuit, and it came before that Court on the 10th of last July, when the defendant pleaded in bar that the action was not brought within two months after the rejection by the administrator of the claim of the plaintiff. The Circuit Court sustained the plea and rendered judgment for defendant and the plaintiff brought exceptions to this Court.

W. A. Kinney, for plaintiff. O. Brown, for defendant.

The statute under consideration is that of 1868 (Compiled Laws, pp. 396-7). It is entitled “An Act to limit the time within which claims of creditors against the estates of deceased persons shall be presented and suits be commenced to enforce rejected claims,” &c. It requires that an executor or administrator shall advertise immediately upon appointment, a notice to “all creditors of the deceased to present their claims,” &c., “within six months from the day of such publication.” Section 3 prescribes that “if the claim be rejected by the administrator or executor, a suit must be brought upon it against the administrator or executor within two months after such rejection, or within two months after the same becomes due, or it will be forever barred.”

The action of replevin is to recover from the party in possession specific property alleged to be wrongfully detained from the plaintiff, and the plaintiff, the party claimant, is not a creditor of deceased’s estate, and her claim is not within the statute in question. (Compiled Laws, p. 396.)

The plea is overruled and the exceptions are sustained. The case is remanded to the Circuit Court, Fourth Circuit, for further proceedings.