Morse v. Clark, 10 Colo. 216

Morse v. Clark

10 Colo. 216 | Colo. | 1887

Elbert, J.

The plaintiffs filed their claim against the estate of the defendant’s intestate on the 17th day of November, 1879, having given notice under the provisions of section 2915, General Laws, 972. The defendant, in obedience to the notice, appeared and contested the claim. Hence this suit. The plea of the statute of limitations (R. S. ch. 55, § 16), interposed by the defendant, was good. The cause of action accrued January 20, 1877, the date of the last payment claimed to have been made by the plaintiffs. The filing of the claim, which must be regarded as the commencement of the suit, was not within the two-years limit fixed by the statute. It appears that theretofore, on the 4th day of February, 1878, the plaintiffs had filed the same claim in the probate court, and subsequently, on March 30, 1878, withdrew it. It is claimed that this must be treated as the commencement of the action. However this might be, had the claim not been withdrawn, the proposition is inadmissible in face of that fact. Reitzell v. Miller, 25 Ill. 69. 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. Corning v. Ryan, 3 Colo. 528.

It is further contended by counsel for the appellants that the filing of the claim, February 4, 1878, in accordance with the provisions of section 2918, General Laws, *219972, stopped the general statute of limitations from running. A like question, under a similar statute, was made in the case of Reitzell v. Miller, 25 Ill. 69. The court say: “It was not the design of the general assembly that the filing of a claim should arrest the general statute of limitations which had previously begun to run, nor to prevent it from afterwards running upon a claim not due at the time of its presentation. The object of this section is to facilitate and produce speedy settlement of estates of deceased persons, and it could not have been designed to give creditors an unlimited period of time within which to establish the justice of their claim after they had been exhibited in the probate court. Such a construction would defeat the manifest intention of the enactment.” We think this view correct.

The filing of the claim, February 1, 1878, and its subsequent withdrawal on March 30, 1878, and its refiling November 17, 1879, in the county court, are facts which appear from the claimants’ own showing. It is therefore unnecessary to go into the question touching the admissibility of the copy of the petition which the defendant offered and the court received in evidence.

The judgment of the court below is affirmed.

Helm, J., did not sit in this case.

Affirmed.