Schurmeier v. Connecticut Mut. Life Ins.

124 F. 865 | 8th Cir. | 1903

PER CURIAM.

It was claimed upon argument by counsel for defendant in error that, although the complaint failed to so state, the maturity of the note sued upon had been extended, during the lifetime of the testator, to a date subsequent to the expiration of the time allowed by the state court for the presentation of claims, and that the complaint was drawn in reliance upon the prior decision of this court in the case of Security Trust Company v. Dent, 43 C. C. A. 594, 104 Fed. 380, wherein it was held that an action might be maintained against an executor or administrator in the federal court, notwithstanding the fact that the time for presentation of claims in the state court had expired prior to the commencement of the action, without alleging any excuse for not bringing the action within the time so limited. That judgment was reversed by the Supreme Court by a decision filed December i, 1902 (Security Trust Co. v. Black River Nat. Bank, 187 U. S. 211, 23 Sup. Ct. 52, 47 L. Ed. 147). after the trial of this action in the Circuit Court and the entry of judgment therein.

As the record now stands, upon the authority of that case the judgment of the court below must be reversed, and the demurrer overruled, but with leave to the plaintiff to reply to the answer or to amend its complaint, stating its cause of action at law or in equity, as it may be advised, and with leave to the defendants to answer or otherwise plead to such amended complaint.

The judgment of the Circuit Court is reversed, with costs, and the cause remanded for further proceedings in accordance herewith.