1 P.2d 335 | Mont. | 1931
Lead Opinion
A claim against an estate may be amended after the expiration of the time for presentation of claims. (Chinn Land LivestockCo. v. Stewart,
Great liberality is permitted in allowing these amendments. (White v. Deering,
The claim is in the nature of a pleading and the provisions of the Revised Codes of 1921 (secs. 9008-9832) are expressly made applicable to probate proceedings (sec. 10365, Id.; State exrel. Hahn v. District Court,
Refusal to permit an amendment which is proposed at an opportune time and should be made in furtherance of justice is an abuse of discretion. (1 Bancroft on Code Pleading, p. 744;Senate Silver Min. Co. v. Hackberry C. Min. Co.,
In Chase v. Cable Co.,
"Where the denial of the motion to amend may have the effect of finally determining the rights of the parties, the motion should be granted unless facts exist making it inequitable to do so." (49 C.J. 475; 21 Cal. Jur. 182-185.)
In Davis v. Superior Court,
It appears that George R. Cummings died on November 30, 1929, and that on December 14, 1929, Mrs. Albert Anderson was regularly appointed administratrix of his estate, and ever since has been, and now is, the duly appointed, qualified, and *285 acting administratrix of such estate, which is now regularly in process of administration in Dawson county. On December 14, 1929, the administratrix published notice to creditors, requiring claims against the estate to be presented within four months after the first publication. The attorney for relator filed its claim against the estate, being under "the impression that notice to creditors had been given, but not informed and did not know when the time for publication expired," and "he was not advised of any action upon said original claim until some time in June, 1930, at which time said claim was rejected, and he was not notified of the reason of the rejection of said claim, and thereafter commenced an action in the district court" of Silver Bow county, "based upon said claim, and did not know of the defect or reason for the rejection of said claim until the end of April, 1931," after he had requested a trial of the action.
Pursuant to an order of the court made and entered July 14, 1930, first publication of a second notice to creditors was had on July 17, 1930, requiring creditors to present their claims against the estate within ten months. The action on the claim was set for trial May 4, 1931, but continued at the request of the administratrix until May 18, 1931, "the day after the expiration of notice to creditors." On or about the twelfth day of May, 1931, the attorney for the relator discovered that the original claim was rejected "because the copies of the contracts were not attached, and examined the statute and discovered it was necessary to attach copies of the contracts to the claim." Some time prior to February 2, 1931, the relator, through its attorney, filed an amended claim with the administratrix, based upon the same contracts, there being no copies of the alleged contracts attached thereto. It was rejected by the administratrix February 2, and filed with the clerk on April 7, 1931. The relator did not learn of the second publication of notice to creditors until May 12, 1931, five days prior to the expiration of the time permitted for the presentation of claims against the estate, nor that it was necessary to attach exact copies of the contracts to its claim made against the estate, and *286 on May 16, 1931, one day before the bar of the statute of nonclaim, presented to the administratrix an amended claim against the estate, with copies of contracts attached, which were not true and correct copies of the contracts made the basis of the claim. This claim was disallowed by the administratrix on June 1, 1931, and filed with the clerk of the court on June 9, 1931.
On June 9, 1931, more than a month after the lapse of the time permitted for the presentation of claims according to the second publication of notice to creditors, the relator filed with the court a motion to be permitted to amend its amended claim against the estate by attaching true and correct copies of the contract upon which the claim against the estate is predicated. The matter was argued and presented to the court on June 13, 1931, and by the court taken under advisement until June 17, 1931, when the motion was denied. Hence this proceeding.
The only question presented for decision is whether the court was in error in denying the relator's motion to amend its claim against the estate after the lapse of the time prescribed by law for the presentation of claims.
So far as here pertinent, our statute provides: "All claims[1] arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever." (Sec. 10173, Rev. Codes 1921.) "If the claim be founded on a bond, bill, note, or other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction." (Id., sec. 10177.) These statutory requirements are mandatory, unambiguous, and as plain as it is possible to express them.
By the terms of section 10177, a claim against the estate of a decedent, founded upon a writing which is neither lost nor destroyed, must be accompanied either by the original or a *287
copy of it when presented to an executor or administrator for allowance, and, where not so accompanied, it is proper for the executor or administrator to reject it. (Burnett v. Neraal,
It is true that the same pictures, and the same prices[2] therefor, are found in the contracts which are the foundation for the amended claim, and the proposed amended claim; but the amended claim is no claim without the contract or contracts upon which it is based, and, as the contracts do not support it, the administratrix was compelled to reject it. Now the proposed amended claim is founded upon claims different in form and substance from those appended to the amended claim. It will not do to pick out portions of two different contracts, disregarding other important features of the different contracts, and say they support the claim. The claim has no validity without the contract upon which it confessedly must be based. By no stretch of the imagination can it be said that the contracts are substantially the same.
To the amended claim, filed timely, are attached seven contracts. One gives the names of 33 photoplays with prices; a second gives the names of 28 photoplays with prices; a third gives the names of 10 photoplays with prices; a fourth gives the name of 1 photoplay with price; a fifth describes 24 Christie two-reel talking plays, 6 Paramount two-reel talking plays, 32 Paramount one-reel acts; 18 Paramount one-reel screen songs; 6 Paramount talker-tones; with prices. A sixth *288 relates to a picture called "Why Bring That Up," Moran Mack "The Two Black Crows," with price, and specifications as to what shall be charged for admission (found in no other contract except this, and the one to be mentioned next); a seventh relates to a photoplay called "Welcome Danger," a Harold Lloyd production with price and restrictions as to the admission. To the amended claim proposed to be filed after the bar of the statute, five contracts are attached: The first gives the names of 8 photoplays with prices; the second of 10 photoplays with prices; the third 12 photoplays with prices; the fourth 10 photoplays with prices; the fifth 24 Christie two-reel plays with prices, 6 Paramount two-reel talking plays, 32 Paramount one-reel acts, 18 Paramount one-reel screen songs, 6 Paramount one-reel talker-tones. None of the photoplays named in the claim can be found in consecutive order in any of the contracts, and the following named photoplays are not specifically named either in the contracts attached to the claim filed in time, or to the contracts attached to the proposed amended claim, namely: "Saturday Night Kid, High Heels, Chinatown My Chinatown, Dangerous Females, Faro Nell, Brown Gravy, Weak but Willing, Marching to Georgia, Red Headed Hussy."
It would too greatly extend this opinion to point out the great differences which exist between the contracts embodied on the printed forms in the amended claim rejected June 1, 1931, and the copies of the contracts now proposed to be filled after the bar of the statute. Suffice it to say that the contracts appended to the amended claim are widely different in form and substance in many important particulars from those appended to the proposed amended claim.
Here the claimant was presumed to have known the law, and that it was incumbent upon it to accompany its claim with copies of the contracts upon which the claim is predicated. It had knowledge that the estate was in process of administration and made timely presentation of its claim, although not in correct form. It attempted to make amendment of its claim before the bar of the statute so as to attach copies of *289
the contracts as by law required, but admittedly failed to attach[3] correct copies. Where a creditor attempts to present his claim for allowance, and for some reason it is not in proper form, no valid ground suggests itself as to why he may not be permitted to present it again in due form, provided he does so before the lapse of the time prescribed for the presentation of claims. (Lindsay v. Hogan,
In support of its position, the relator relies upon a decision of the district court of appeals, third district of California, in *290
the case of Davis v. Superior Court,
However, on the authority of Roche Valley Land Co. v.[5] Barth,
It would have been more in keeping with the purpose of the statute had the notice described the office of F.S.P. Foss, as a "law office," or given a more specific reference. However, under the circumstances in this case, the notice is, in our opinion, sufficient.
For the reasons stated, the writ is denied and the proceeding dismissed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICE MATTHEWS concur.
Concurrence Opinion
I concur in what is said by MR. JUSTICE ANGSTMAN.
Dissenting Opinion
My inability to agree with the conclusion announced in the majority opinion is not grounded so much upon the statement of the legal principles discussed, as upon their application to the facts of this case. The amended claim that was presented to the administratrix specified the names of the pictures for which payment had not been made, and on which the claim was based. All are based upon contract of August 14, 1929. The pictures specified, and the amount due for each, were as follows: Mysterious Dr. Fu Manchu, $100 and recording charge of $22.50; Illusion, $125.50 and recording charge of $22.50; The Greene Murder Case, $60 and recording charge of $15; Charming Sinners, $50 and recording charge $15; Ladies Choice, $15; Dangerous Females, $15; Faro Nell, $15; Chinatown My Chinatown, $7.50; for expressage of Love Doctor, $2.95; for advertising on Glorifying the American Girl, $2.85; for advertising on Brown Gravy, Weak but Willing, Marching to Georgia, and Red Headed Hussy, 68ยข; expressage on The Virginian and Weak but Willing, $6.47; for advertising on Cocoanuts, $6.97, The Virginian, $1.74; Pointed Heels, $5.15; Saturday Night Kid, $7.07; making an alleged total of $396.41.
The pictures enumerated in the written contract sought to be substituted in lieu of the contract originally attached were also enumerated in the contract that was attached to the claim when presented. There is no effort being made to amend the claim in any respect, but only to substitute a correct copy of the contract for the erroneous copy presented to the administratrix *292 with the claim. As above noted, the erroneous contract attached to the claim, as well as the corrected copy of the contract, both name the same pictures specified in the claim for which payment is sought. The erroneous contract named certain other pictures not embraced in the claim, and the corrected copy of the contract does likewise, and names some pictures not named in the erroneous contract, but none such are involved or embraced in the claim.
Also on the back of the corrected copy of the contract there is an arbitration clause not appearing in the erroneous copy presented with the claim. There are other minor discrepancies between the two contracts in respect to printed matter on the back of each, but all of the printed matter on both contracts is primarily for the benefit and protection of the claimant. The printed matter on the back of the contract does not appear to enter into the merits of the claim in question. The contract it is claimed, except for the payment of the pictures, has been fully executed.
With this statement of the facts as they appear, we then come to the law applicable thereto.
Section 9187, Revised Codes 1921, provides: "The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer, reply, or demurrer. The court may likewise, in its discretion, after notice to or in the presence of the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and upon like terms allow an answer to be made after the time limited by this code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was *293
taken." The word "proceeding" as used in other statutes embraces probate proceedings (State ex rel. Nissler v. Donlan,
"Statements of claims are generally subject to amendment, provided that substantial justice will be promoted thereby, that the cause of action embraced in the original statement is not changed, that new items are not added, and of course that the original statement contains allegations upon which an amendment may be predicated, such amendments being allowed either under the general statutes relating to amendments of pleadings or under special statutes applicable to claims of creditors in administration proceedings." (24 C.J., sec. 991, p. 354; and see 11 Cal. Jur. 710; 11 R.C.L. 198.)
Liberality should be exercised in allowing amendments to claims (White v. Deering,
I do not interpret the opinion in the case of Davis v.Superior Court,
In Trustees, etc., v. Paxton,
In Carter v. Pierce,
In the case of Bates v. Howell's Estate,
In speaking of this question, the court, in Smith v. Funk,
It is my opinion that under section 9187, the court may permit the filing of a correct copy of the contract on which the claim is founded, after the time allowed by law for the presentation of claims, the claim itself having been presented within time, where, as here, it does not in any manner change the nature of the claim. I agree with what is said in the *297 majority opinion with respect to the notice to creditors. Whether petitioner made out a sufficient showing to warrant relief under section 9187, not being discussed in the majority opinion, requires no consideration here.