McElroy v. Whitney

133 P. 118 | Idaho | 1913

SULLIVAN, J.

This is an appeal from a modified or corrected judgment rendered and entered on the 26th of October, 1912. The original judgment was entered on the first day of May, 1912, in favor of the respondent, as administrator of the estate of John G. Whitney and against Mamie L. Whitney, as administratrix of the estate of W. G. Whitney, deceased, for the sum of $11,034.07. On October 9, 1912, Hugh E. McElroy, as administrator, moved to have said judgment amended by adding thereto the following: “And that said judgment be paid in due course of administration of the said estate of W. G. Whitney, deceased.” Notice of said motion was properly served on counsel for the appellant and a hearing thereof was had before the court on October 26, 1912, and said motion granted and the court directed the clerk to^ make said amendment by interlineation, which was accordingly done and the clerk added to the last sentence of said judgment the following words: “And that said judgment be paid in due course of administration of the said estate of W. G. Whitney, deceased.”

This case was before this court on a former appeal, and the judgment reversed and the cause remanded for further proceedings. (See McElroy v. Whitney, 12 Ida. 512, 88 Pac. 349.)

In limine, a motion was made to dismiss this appeal and to strike out certain portions of the transcript. The ground of the motion to dismiss the appeal is that the appeal was not taken within the time provided by law, to wit, within sixty days after the rendition of judgment.

The judgment as entered on the first day of May, 1912, provided as follows: “That the plaintiff, Hugh E. McElroy, as administrator of the estate of John G. Whitney, deceased, do have and recover of and from the said defendant, Mamie L. Whitney, as administratrix of the estate of W. G. Whitney, deceased, the sum of $11,034.07, and his costs and disbursements incurred herein, taxed at $731.15.”

This is a -judgment in favor of an administrator against an administratrix. The judgment is not against Mamie L. Whitney individually or personally, but against her as administratrix of the estate of W. G. Whitney, deceased. Under-the provisions of sec. 5474, Rev. Codes, a judgment rendered against an executor or administrator upon any claim for money against the estate of his testator or intestate only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the probate judge, and the judgment must be that the executor or administrator pay in due course of administration the amount ascertained to be due. Out of an abundance of caution, we suppose, counsel for respondent moved to have said judgment amended as above stated. This addition or amendment did not in any manner change or affect said judgment or the parties thereto, for said judgment as entered on the first of May was required to be “paid in due course of administration” under the provisions of said sec. 5474. That section of the statute became a part of the judgment without inserting it therein. The judgment entered in said case had remained a valid judgment without any change or modification up to October 26, 1912, and no appeal had been taken therefrom; and became final. Sec. 4807, Rev. Codes, as amended by Session Laws of 1911, p. 367, fixes the time within which an appeal may be taken from a final judgment in an action commenced in the court in which the same is rendered at sixty days after the entry of such judgment, and as said amendment to said judgment made on October 26, 1912, did not in any manner affect or change said judgment, this appeal from the judgment taken on December 21, 1912, nearly seven months after the entry of the final judgment, is too late and the motion to dismiss must be sustained.

The judgment entered on May 1, 1912, was the final judgment in this action, and the amendment merely a correction, which was in fact not necessary to make the judgment conform to said provisions of the 'statute. In other words, the amendment in no manner changed the judgment or its effect, and it was not made for the purpose of changing or revising said judgment. The court on said motion simply-incorporated the words of the statute which were in fact a part of the judgment without such incorporation.

In Racouillat v. Sansevain, 32 Cal. 376, the court said:

‘ ‘ As against Requena, executor, the judgment is not technically in proper form. It should be that he ‘pay in due course of administration’ the amount found to be due from the estate of Yigues (Prob. Act, sec. 140). The form is that the plaintiffs do have and recover ‘against Manuel Requena, as executor of the last will and testament of J. L. Yigues, deceased, the sum of,’ etc. Perhaps though not in the form prescribed by the statute, the legal effect may be the same, and possibly, under the law, the plaintiffs may not be authorized to enforce the judgment against the property of Requena. To avoid any doubt, the judgment had better be corrected. This may be done by adding at the end of the judgment the words: ‘And it is ordered and adjudged that the said Requena, executor, pay the said sums in due course of administration.’ ”

The judgment in the case at bar was a money judgment, and the amount of the judgment, interest and costs, was the same when it was rendered on May 1st as it was when said amendment was made on October 26th.

Every question that it was possible to review on an appeal could have been reviewed’ on an appeal from the judgment entered May 1st, except the question as to whether the court erred in allowing said amendment, and if it had been desired to present any of the questions that could be raised on an appeal from said judgment of May 1st, an appeal should have been taken from that judgment, and if the appellant had desired to contest the action of the court in granting said amendment to the judgment, she should have appealed from that order and not from the judgment itself. (Subd. 3, sec. 4807, Rev. Codes.)

However, since a large sum of money is involved in this case, we have gone through the record and the briefs with a view of ascertaining whether the record contained any reversible error, and from said examination we are satisfied that there is no error in the record that would justify a reversal of the judgment.

For the foregoing reasons the appeal is dismissed. Costs are awarded to the respondent.

Ailshie, C. J., concurs. Stewart, J., did not sit at the hearing or take any part in the decision.