23 Kan. 181 | Kan. | 1879
The opinion of the court was delivered by
In 1861, Thomas E. Tutt, Dent G. Tutt, and John F. Baker, had a claim against Wilkins T. Wheatly
First, A petition in error by Margaret E. Scroggs, plaintiff in error, as. administratrix of the estate of James A. ¡Cruise, deceased, and others, against said Tutts and Baker, defendants in error, to reverse an order of the district court reviving a certain judgment against Mrs. Scroggs, as such administratrix, which judgment had previously been rendered in favor of -said Tutts and Baker, and against Pembroke S. Ferguson, James S. Cruise, and others, in the lifetime of said 'Cruise, on the official bond of said Ferguson, as the sheriff of Wyandotte county.
Second, A petition in error by Tutts and Baker, making Mrs. Scroggs defendant in error, to reverse a judgment of the district court affirming an order of the probate court refusing to allow or classify said judgment (rendered against Ferguson, Cruise and others,) as a legal claim against the estate of said James A. Cruise, deceased.
We shall consider these two cases together. The facts, so far as it is necessary to state them, are as follows:
On June 19, 1869, a judgment was rendered in the district court of Wyandotte county, in favor of Tutts .and Baker, and against Ferguson, Cruise and others, on the said official bond of Ferguson, for the sum of. $2,350 and costs. In December, 1871, the collection and enforcement of this-judgment was restrained by injunction. On May 23,1873, Cruise died intestate. On May 26, 1873, his widow, Mrs. Cruise, (now Mrs. Scroggs,) was appointed administratrix of his estate. Mrs. Cruise immediately accepted the. trust, and qualified by giving bond and taking the required oath, and caused notice of her appointment to be duly published for three consecutive weeks in a weekly newspaper, published and of general cir
On August 7, 1878, the Tutts and Baker served upon Mrs. Scroggs a notice in writing of their claim, and the time-for hearing the same in the probate court, etc., as required by §§ 84 and 91 of the executors’ and administrators’ act, (Comp. Laws of 1879, pp. 420, 421), for the purpose of duly exhibiting their claim as required by said § 84, and of enabling them to afterward establish their claim, as required by said § 91, and of having the same allowed and classified by the probate court. On August 10, 1878, the parties filed their pleadings, and the case was heard by the probate court; and on August 26, 1878, the court decided the same against the Tutts and Baker — refusing to allow or classify their claim, or any part thereof. ■ On August 28, 1878, the Tutts and Baker appealed their case to the district court. On December 16,. 1878, the case was heard in the district court, and the decision of the probate court was affirmed in every particular. The Tutts and Baker then moved for a new trial, which motion was overruled, and then they brought the case to this-court for review, and this is the second of said two cases now pending in this court.
Mrs. Scroggs, whom we shall hereafter call the defendant,, claims that the, court below erred in reviving said judgment-against her; while the plaintiffs, of course, claim the reverse. And the plaintiffs claim that the court below erred in affirming the decision of the probate court, refusing to allow or classify their said claim founded on said judgment; while the defendant, on the contrary, claims that the court below did nqt so err. The defendant, in support of her views, contends as follows: Up to July 12, 1878 (when said judgment was-revived against her), there was no judgment in favor of the plaintiffs and against her as administratrix or otherwise, or against the estate. She claims that up to that time said judgment against Ferguson, Cruise and others (which does not
The defendant also claims that on June 19,1878, (the- time when said motion was made to revive said judgment,) all proceedings to enforce the payment of said claimwere barred by certain statutes of limitation; that the proceeding to revive .said judgment was barred by §433, in connection with §439, of the code of civil procedure; that §81 of the executors’ and administrators’ act barred all proceedings in the probate ■court for the enforcement of said claim, and that § 106 of
For the purposes of this case, we shall assume that-no statute of limitation commenced to run against the plaintiffs’ claim until after said injunction was dissolved, which was in April, 1875. The defendant claims that certain statutes commenced to run earlier, while the plaintiffs claim that no statute has ever so run as to bar their claim. Is said claim' barred? More than three years elapsed after said injunction was dissolved, and before the plaintiffs took any steps to revive their judgment or to exhibit it, or to establish it as a demand against the said estate; and, therefore, it would seem that said claim was barred, just as the defendant claims that it was. But the plaintiffs claim that the said statutes did not bar their claim for the following'reasons: 1. A certified transcript of said judgment was filed in the probate court, and classified by that court on September 13, 1875; 2. A suit was brought by the plaintiffs against Mrs. Seroggs- and her sureties on her administratrix’s bond, on May 12, 1876; 3. The plaintiffs failed in said suit, in January, 1878, “otherwise than upon the merits,” and they made said motion to revive said judgment on June 19, 1878, and they commenced their action in the probate court to establish their demand on said judgment on August 7, 1878 — both of which proceedings were commenced within less than one year after said failure in the suit on said administratrix’s bond — and therefore, under § 23 of the civil code, their claim is not barred; 4. Said §433 of the civil code, relating to revivor of actions, has no application to judgments.
We do not think that any of the foregoing reasons are sufficient. The filing of said transcript in the probate court was not the commencement of an action against the estate. (Scroggs v. Tutt, ante.) Nor was it even a legal exhibition of the plaintiffs’ claim against the estate. (See executors’ and ad ministers’ act, §§82 to 84.) Nor was it anything upon which the plaintiffs can found any right. Taking it and said classi
We think that said claim was barred by §81 of the executors’ and administrators’ act, which bars all demands against the estate which are not legally exhibited against the estate within three years after letters of administration are first granted. We also think that said claim was barred by § 106-of said last-mentioned act, which bars all claims against the estate which are not sued on within three years after the administrator’s bond is given; provided, however, that the administrator gives proper notice of his appointment, as was done in this case. (Hanson v. Towle, 19 Kas. 273; Clawson v. McCune, 20 Kas. 337; see also Collamore v. Wilder, 19 Kas. 67.) Said notice was duly given, in accordance with § 29 of the executors’ and administrators’ act.
Perhaps it is hardly necessary for us to consider the statutes relating to the revivor of judgments; for, as we have already seen, the plaintiffs’ claim was barred by other statutes, to wit, said §§ 81 and 106, before said motion to revive was made. We shall, however, offer a few suggestions relating to the revivor of judgments. Sec. 433 of the civil code reads as follows:
“An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.”
“ If either or both parties die after judgment and before satisfaction thereof, their representatives,-real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered and execution awarded as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.”
According to the above statutes, where a year elapses within which an action might he revived against an administrator, and it is not revived, it then requires the consent of the administrator to authorize its revivor; and a judgment can be revived only “ in the same manner as is prescribed for reviving actions.” Therefore, where a year elapses within which a judgment might be revived, and it is not revived, it will then (the same as in cases of revivors of actions) require the consent of the administrator to authorize its revivor. The proceeding to revive an action and the proceeding to revive a judgment are substantially the same; each must correspond to the same formula. Hence, where an action ■cannot be revived without the consent of the administrator, neither can a judgment. It is seldom necessary, however, to revive a judgment. Where the judgment has been executed or satisfied in the lifetime of the deceased, it is certainly unnecessary; for the death of a party can never disturb rights already vested in others. And even where the judgment has not been executed or satisfied, if it is a money judgment, and the estate is solvent, there can be but little necessity for its revivor, for the judgment creditor has the power to enforce the payment of his money as well without as with revivor. He may present his claim and have it established at any time within three years, and .then enforce its payment, although he may never have his judgment revived. But it may be said that by failing to revive his judgment, he loses his judgment lien. This is true; but if the estate is solvent, it makes but little difference. But if, for any reason, he wishes to preserve his lien, he should be required to revive
We think that a judgment cannot be revived against an administrator after a year has elapsed within which it could be revived, except with the consent of the administrator, and that the rule is a reasonable one. And as the court below in the present case permitted such a revivor after a year had elasped, without the consent and against the will of the administratrix, we think the court below erred.
The judgment of the court below in the case of Scroggs and others against Tutt and others will be reversed, and the judgment in the case of Tutt and others against Scroggs will be affirmed.