146 Ark. 262 | Ark. | 1920
This appeal is from a decree of the ciiancery court of Conway County, reopening and setting aside a judgment of the probate court of Conway County disallowing a claim of $2,000, which the appellee sought to have probated and allowed by the probate court. The complaint alleged that the plaintiff (appellee here) was the owner and holder of a check given her by Carl Meier in the sum of $2,000, which remained unpaid, and which she presented to the administrators for approval and payment, which was refused. She then presented the check to the probate court of Conway County, and that court on January 15, 1918, passed upon the claim and disallowed the same, and by a mmc pro tunc entry showed that the order of disallowance was made on July 9,-1917; that the plaintiff, through her attorneys, made many calls upon the county clerk and his deputy asking if said claim had been passed upon, and was informed by them that it had not been; that, relying upon these representations of the clerk and his deputy, the plaintiff, without negligence on her part or her attorneys,-had lost her right to appeal; that her claim was a just and honest one, and that the misleading statements of the clerk and his deputy were a fraud and deception, which, unless corrected, would cause the loss of her claim. She, therefore, prayed that the judgment of the probate court be set aside and that the cause be reopened before the probate court, in order that she might further prosecute her claim.
The defendant below answered and admitted that they were the administrators of the estate of Meier; that the claim was presented to them; that the same was disapproved and disallowed, and admitted that the same was on the 9th day of July, 1917, presented to the probate court, and that it was on that day disallowed, but denied that the claim was diallowed on the 14th day of January, 1918. They denied all the other material allegations of the complaint and set up certain affirmative defenses, which are not necessary to mention, and further alleged that the judgment of the probate court of July 9, 1917, was a bar to appellee’s action. The appellants also filed a demurrer to the complaint, which it appears was not passed upon. ■ ■ . ¡ \.
It is unnecessary to. incumber the record by setting out the testimony upon which the trial court made its finding and entered its decree setting aside the judgment of the probate court. The judgment had become final, and, even if it be conceded that the appellee lost her right of appeal without negligence on her part or the part of her attorneys and through the misrepresentations of the clerk of the probate court and his deputy to the effect that the claim had not been passed upon, still this would not justify the chancery court in setting aside the judgment of the probate court. The allowance or disallowance of a claim against an estate in the probate court is a judgment by which all parties are bound unless fraud be shown in its procurement. James v. Gibson, 73 Ark. 440; Scott v. Penn, 68 Ark. 492; Berbridge v. Gotch, 107 Ark. 136; Vanness v. Vanness, 128 Ark. 543; Radford v. Samstag, 113 Ark. 185, and other cases cited in appellant ’s brief..
The complaint does not allege, nor does the testimony show, that there was any fraud practiced upon the probate court by the appellants or the attorney for the estate of Meier in procuring the judgment of disallowance of the claim of the appellee. The complaint was, therefore, fatally defective and might have been dismissed on that ground. The court, however, did not rule on the demurrer, but the cause was disposed of on the evidence, and there is no testimony to show that the judgment of disallowance was procured through any fraud practiced upon the court by the appellants or the attorney for the estate of Meier. Furthermore, the appellee would not be entitled to relief in equity against a judgment of the probate court disallowing her claim on the ground that her appeal was not perfected, whether through the negligence of herself or her attorneys, or through the negligence of the clerk of the probate court. Waldo v. Thweatt, 64 Ark. 126. See, also, Scroggin v. Hammett Grocer Co., 66 Ark. 183. See Awbrey v. Hoopes, 145 Ark. 502.
There is no merit in the appeal. The decree is therefore reversed and the cause is dismissed.
