6 Colo. App. 57 | Colo. Ct. App. | 1895
delivered the opinion of the court.
This suit against the sureties of the administrator of Newman Metz, to compel them to pay a judgment alleged to have been obtained against the decedent, has resulted in a record which abounds in legal informalities and some very significant errors. In March, 1891, Henry Metz, who was the father of Newman, filed a petition in the county court wherein he stated the death of his son, the estimated value of the personal estate, the absence of wife or children,' and prayed an appointment as administrator. The petition was granted. He filed a bond in the sum of one thousand dol
The whole theory of the plaintiff’s case seems to be that the sureties on the administrator’s bond can be held for the benefit of any creditor of the estate on the simple proof of a failure of the administrator to file his inventory. There may be some little basis for the contention because of the stringent provisions in sections 3632 and 3633 of the General Statutes of 1883. This legislation permits a recovery on an administrator’s bond by any person who may be injured by the conduct of the representative. The enactment is a very broad one, and, in general, provides that any violation of the provisions of the chapter shall be treated as a devastavit, and shall entitle the party to maintain his suit. Even though this be conceded to be true in its broad scope, the deduction which counsel makes, that since, on proof of a devastavit, the common law made the administrator liable for all claims which the estate owed, therefore he is liable under this statute, is a non sequitur in its application to proceedings under our statute. Without specific reference to the sections, it may be said that chapter 95 of our General Statutes has provided a plan for the management of the affairs of the estates of deceased persons. Claims against an estate must be filed in the county court, and they stand in a certain relative order, and are entitled in that order to priority of payment. It is quite as necessary that the alleged creditor should file his claim with the county court, and have it allowed or a judgment passed upon it, as it is that the administrator should do
The gross injustice which might result from the adoption of any other rule will be made quite manifest from the consideration of the present case. Reid, Murdoch & Co. filed a' claim in the county court which consisted simply of a tran
It is true the Hunter Case adjudges that the plaintiff may recover nominal damages where he proves a breach of the bond resulting from a failure to comply with some technical
We are quite at a loss to understand the proceedings which were taken to make Rachel Metz a party to the suit. It is true counsel made no objection to the entry of the order, and we are probably under no obligations' to express an opinion concerning it. Since this suit goes back for a new trial, it seems best to us to make a suggestion of the irregularities which have resulted from this procedure. It seems quite well settled in this state that the code has not changed the common law rule respecting the fight to join people who are sued in their individual light with those who are brought in in a representative capacity. This matter very early received the consideration of the supreme court. Mattison v. Childs et al., 5 Colo. 78; Lamping v. Keenan, 9 Colo. 390.
These cases hold that a separate action could be maintained against the survivor, Hyman, or probably a separate action against Rachel Metz, as the adrhinistratrix of the deceased surety, Richard Metz. But those cases clearly decide that a joint action cannot be maintained, and that no joint judgment can be rendered against them. As the distinction is
We do not intend by what we have said to adjudge that of necessity there can be no such thing as a judgment or claim against an estate save what may follow from the filing of a statement in the county court and the procurement of a judgment thereon. It might happen that a suit begun against the decedent in his lifetime would be continued as against the administrator after his death, and result in a judgment against the estate which would he as conclusive as any judgment which might be obtained in the county court. What the law would be with reference to such a matter we do not determine. We deem it wise, however, to limit this decision respecting the necessity to file claims in the county court to cases like that at bar. There are numerous provisions in the statute respecting the estates of decedents, and we do not desire to extend our conclusions beyond the necessity of the present inquiry.
The judgment was not warranted by the case made ; it is irregular and bad in form, and the case must be reversed and sent hack for a new trial.
Reversed.