Gewe v. Hanszen

85 Mo. App. 136 | Mo. Ct. App. | 1900

ELLISON, J.

— This action was begun in the circuit court and is on a promissory note given by a father to his son and assigned to plaintiff by the latter.

The maker died and defendant was appointed his executrix on August 14, 1896. She immediately gave notice of her appointment. Plaintiff begun this suit August 12, 1898, against defendant as administratrix. In December following, he filed an amended petition by declaring against her as executrix. A copy of the note was filed with the original petition sworn to by plaintiff’s attorney. A copy was filed with the amended petition sworn to by plaintiff himself. An answer was filed by defendant and on trial the jury failed to agree. Afterwards, the court sustained the following motion to dismiss and plaintiff appealed:

“Now comes the defendant, and appearing for the purpose of this motion and for no other purpose, moves the court to dismiss this suit for the following reasons:

“1. Because it appears from the return of the sheriff herein that no copy of the note sued on was served on the defendant within two years from the granting of letters of ex-ecutorship herein, nor at any time, as required by law.

“2. Because it is shown by the petition herein that the note alleged to have been executed by the defendant’s testator, H. O. Hanszen, is not filed with the petition and no copy of the alleged claim could therefore have been served on the defendant, and because the instrument sued on was not sworn to by any party to the suit or to said instrument of writing sued on.

“3. Because it is shown from the petition and return of the writ made by the sheriff that more than two years had elapsed since said letters were granted and notice thereof and the bringing of this suit, and the same is now barred by said statute of two years’ limitation.

“Wherefore, this court has no jurisdiction of the said estate nor authority to render judgment herein.”

1. It will be observed that the chief point for decision is as to the application of the two-years period of limitation in cases of allowance of demands against estates. The original petition was two days within the two years. The amended petition was after the two years had expired. It is clear that ordinarily where the original petition is within the period of limitation an' amended petition will not be considered as an institution of a new suit so as to let in the bar of the statute. ' We think this amendment falls within that rule and that merely changing the character of the representative capacity of the defendant from administratrix to executrix ought not to affect the action as to the application of the period of limitation. The amendment did not change the cause of action. The amended petition was a continuation of the original action. Crockett v. Transfer Co., 52 Mo. 457; Lilly v. Tobbein, 103 Mo. 477; Harkness v. Julian, 53 Mo. 238.

2. But defendant contends that the statute requires that the demand must be exhibited to an executor or administrator within two years. R. S. 1889, sees. 187, 188. The statute does so provide. It, however, also provides (section 190) that demands may be established by the judgment of a court of record in the ordinary course of proceeding. When the judgment is so obtained it is considered as exhibited as of the date of the service of the process (section 186). So, therefore, the demand in this case having been put in suit, and process served within the- two-years period of limitation it must be considered as having been legally exhibited.

3. A question arises here whether this demand must be presented to the probate court within the two-years period. If it must be, then, since suit was only begun two days before the limitation expired, the judgment to be obtained could not, of course, be presented to the probate court in time. Under the provisions of the statute of 1889 (omitted in statute of 1899) the demand must not only be exhibited but it must also be presented to the probate court within the period limited. Bank v. Burgin, 73 Mo. App. 108. But that statute has reference to claims which are exhibited to the administrator or executor and are to be presented to the probate court for allowance. When a claim is sued upon in another court as in “ordinary proceedings” (section 190), it is there established and is not afterwards presented to the probate court for allowance but is only so presented for classification. Wernse v. McPike, 100 Mo. 487. So, therefore, we held that judgments obtained in suits begun against the executor or administrator within the period of limitation, are not included in the statute requiring that the claim shall be both exhibited and presente^.

4. But defendant' also contends that the copy of the note filed with the original petition was sworn to by the attorney in the cause and that this was not a compliance with the statute. R. S. 1889, sec. 2088. It is true that the copy should not have been sworn to by the attorney but we can not see any reason why it may not properly be sworn to by the party on filing the amended petition. It has been held that where the instrument is not filed with the original petition it may be filed with an amended petition. State ex rel. v. Miller, 16 Mo. App. 539. When not filed with the petition it may be filed afterwards. Hannibal Ry. Co. v. Knudson, 62 Mo. 569.

5. It is also nrged in support of the judgment that the defendant should have been served with a copy of the demand (even if the action was begun in the circuit court) as is contemplated by section 187. What we have already said as to the right of a claimant to exhibit his demand by suit in the circuit court answers this objection and is supported by the eases of Wernse v. McPike, 100 Mo. 480, and Stephens v. Bernays, 119 Mo. 147. The case of Bank v. Suman, 79 Mo. 527, does not sustain defendant. The fourth syllabus in the report of that case is misleading.

The judgment is reversed and the cause remanded.

Smith, P. J., concurs; Gill, J., absent.