20 Kan. 271 | Kan. | 1878
The opinion of the court was delivered by
The question presented for our consideration is, whether the mere filing with the probate court having the administration of an estate, of a certified transcript of a judgment rendered against the deceased in his lifetime, and the subsequent classification of the demand by said court, is a valid exhibition and establishment of the claim against the estate. In the absence of the notices named in sections 84 and 91 of the administrator’s act, (ch. 37, Gen. Stat. 449,) and the affidavit required by sec. 88 of the same chapter, and without waiver on the part of the administratrix, or appearance by her, had the probate court any jurisdiction to allow or classify the judgment? Our answer to these interrogatories must be in the negative. Judgments rendered in the lifetime of the deceased, and against him, must be presented and allowed as other demands; and sections 84 and 91 of said ch. 37 are as applicable to the exhibition, presentation,
As there was no attempt on the part of defendants in error prior to the institution of this action to comply with sections ,91 and 92 of said ch. 37, and as the administratrix never appeared in the probate court on the presentation of said demand, and never by writing waived the service of the notice necessary to be given prior to the establishment of the claim, the probate court had no jurisdiction, on said 13th of September 1875, or at any other date, to allow or classify the judgment as a demand against the estate of James A. Cruise, 'deceased. As this demand has never been established against said estate, in any of the forms provided by the statutes, the administratrix had been guilty of no violation of the conditions of her official bond when this action was commenced, and the judgment rendered was wrongfully given. These views do not conflict with enforcing a judgment rendered against the deceased in his lifetime which is a lien upon the real estate as provided in subdivision fourth of sec. 80, ch. 37, nor of having such a judgment revived against the administratrix. (Sec. 439, civil code.)
The cases cited from the Missouri courts by counsel of defendants in error, are not authority, because, in the adoption of sec. 8, Gen. Stat. of Mo. 1865, p.502, the following words, viz., “and shall also exhibit copies of all judgments and decrees rendered in the lifetime of the deceased to the court
The judgment of the district court will be reversed, the case remanded, and the court below is instructed to overrule the demurrer to the second, sixth and seventh defenses.