17 S.D. 35 | S.D. | 1903
This is an appeal from an order sustaining plaintiff’s demurrer to defendants’ answer. The action was brought by the plaintiff to recover from the defendants, as administrators of the estate of Andrew J. Smith, deceased, something over $9,000, including interest, for moneys alleged to have been advanced and paid out by the plaintiff for the said Andrew J. Smith in his lifetime. A copy of the bill of particulars of the account was demanded by the defendants, and the same was furnished, and subsequently an answer was filed in which it was, among other things, admitted that the plaintiff presented his claim to the defendants as administrators of the estate of the said Smith, deceased, and that the same was by them rejected, and the defendants' “allege that said claim was not filed in the county court as a claim against said estate.” The defendants, further answering said complaint, “allege •the fact to be that the cause of action stated in the plaintiff’s complaint did not accrue within six years prior to the com
To certain parts of the answer the plaintiff interposed a demurrer, upon the grounds: (1) That that portion of the third paragraph of said answer which is in words as follows, ‘ ‘but allege that said claim was not filed in the county court as a claim against said estate, ” does not state facts sufficient to constitute any defense whatever to this action; (2) that the fourth paragraph of said answer does not .state facts sufficient to constitute a counterclaim or defense to this action.
The respondent moved the court to strike from the, record in this court the copy of the account furnished to the defendants on their demand, on the ground that the same.is no part of the complaint or record in this case, there being no bill of exceptions. We are of the opinion that this motion should be granted, as the copy of the account constitutes no part, of the complaint or record, hence it is not properly before the court. Fryer v. Breeze, 16 Colo. 323, 26 Pac. 817; Weston v. Luce Co., 102 Mich. 528, 61 N. W. 15: Freas v. Truitt, 2 Colo. 489.
This brings us to the consideration of the demurrer, and, so far as the same refers to the allegation in paragraph 3 of the answer, we are of the opinion that it was properly sustained. The statute does not require a rejected claim against an estate to be filed in the county court, and hence the allegation that the claim was not filed constitutes no defense to the action. Section 5795, Comp. Laws 1887, provides: “Every claim allowed by the executor or administrator and approved by the judge or a copy thereof * * x must within thirty .days thereafter be filed in the county court and be ranked among
The demurrer to that part of the answer pleading the statute of limitations seems to have been interposed upon two grounds: First, that the answer itself was insufficient in "that it failed to state that said Andrew Smith had resided in this state for a period of six years prior to his death; and, second, that as the action was to enforce a trust the statute of limitations did not apply. The contention of the respondent that the answer setting up the statute of limitations is insufficient in form is clearly untenable. This court, in Searls v. Knapp, 5 S. D. 325, 58 N. W. 807, 49 Am. St. Rep. 873, held that an answer pleading the statute of limitations in substantially the form of the present answer was sufficient, This decision has been generally followed, and may be regarded as the settled law of this state,
In the view we take of the case, it would not be proper for this court to pass upon the second question presented. It is true it is contended by the respondent that the action was to enforce a trust, but this is denied by the appellants, who contend that the plaintiff occupies the position of an ordinary creditor seeking to recover for moneys paid out and expended by him for the deceased in his lifetime. The bill of particulars
The order of the circuit court sustaining the demurrer to the third paragraph of the answer is affirmed, and that part of the order sustaining the second demurrer is reversed. As the order of the court is affirmed in part and reversed in part, neither party will be allowed costs in this court, but the appellants are required to pay the clerk’s fees.