19 Mont. 394 | Mont. | 1897
The general statute of limitations (section 41, First Division of the Compiled Statutes 1887) prescribed six years as the period within which actions on judgments could be instituted. At the date of Joel P. Catching’s death there remained, of the six years within which an action on the judgment against him could have been brought, one month and twenty-two days. There was no administration from the date of the judgment debtor’s death on August 30th to September 22d, when letters of administration were issued,— a period of twenty-two days. Under section 52, First Division Compiled Statutes of 1887, this period of twenty-two days was excluded from the six years. Therefore, the judgment was not barred under the general statute of limitations until November 13, 1894. Appellant presented his claim to the administrator on November 9, 1894, and it was promptly-rejected on that day. Suit was instituted on February 7, 1895. Under the general statute of limitations (section 41, supra), the action instituted on February 7, 1895, was clearly barred.
Appellant insists, however, that the general statute (section 41, supra) was superseded by section 155, Second Division Compiled Statutes of 1887, which provided that a suit should, be brought on a claim rejected by an administrator within three months after its rejection. The only question in the case is whether or not said section 155 takes the place of section 41. The case of Quivey v. Hall, 19 Cal. 98, is cited. In that case, the Supreme Court of California, having under consideration statutes somewhat similar to the Montana probate statutes of 1887, said: “The statute substituted the presentation of the claim for suit. * * * But the right to sue does not come from the existence of the claim and the nonpayment. It comes from the refusal of the executor te acknowledge it as a just claim against the estate. This right, therefore, does not accrue until the presentation of the claim, and the party is not bound to present it until after publication, of the notice required by the statute. ’ ’ The record in the case of Quivey v. Hall failed to show that any notice to creditors
Affirmed.