Scroggs v. Tutt, 20 Kan. 271

Scroggs v. Tutt

20 Kan. 271 | Kan. | 1878

The opinion of the court was delivered by

Horton, C. J.:

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, *275and allowance of such demands, as to other claims. An administrator, in the interest of the estate, should have the opportunity to show that such judgment during the lifetime of the intestate had been paid, in whole or in part; and if it be true, that nothing remains due thereon, after-the other provisions of the statute are complied with, in regard to the notices and affidavit required prior to the allowance of the judgment, on the hearing to establish such claim, a certified copy of the judgment would be sufficient proof of the demand, unless the opposing interest should show that 'the holder of such judgment had not given credit to the estate for all payments and offsets to which it was entitled, or some other good defense'thereto was established.

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 *276having probate jurisdiction,”'were omitted in sec. 86, Gen. Stat. of Kas., p.449, which otherwise corresponds with said section 8. Notwithstanding this material difference, it .was originally decided in Missouri that in presenting a judgment rendered against a deceased in his lifetime for allowance against an estate, the same notice is required, as in the presentation of other demands; and this authority is cited in Wagner’s Stat. Mo., edition of 1872, page 102, sec. 8, note 3; Ryan v. Mundy, 14 Mo. 458. It is true, that the subsequent decisions of that state are in conflict with what is stated in that opinion; but these, for the reasons above stated, are not controlling with us.

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.

All the Justices concurring.