Baum Iron Co. v. Carlock

South Dakota Supreme Court

Baum Iron Co. v. Carlock

184 N.W. 205, 44 S.D. 385, 1921 S.D. LEXIS 121

CourtSouth Dakota Supreme Court

DecidedAugust 18, 1921

DocketFile No. 4903

StatusPublished

Cited by1 cases

This text of 184 N.W. 205 (Baum Iron Co. v. Carlock) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baum Iron Co. v. Carlock, 184 N.W. 205, 44 S.D. 385, 1921 S.D. LEXIS 121 (S.D. 1921).

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Opinion

WHITING, J.

Appeal from a judgment based upon findings of fact and conclusions of law, which judgment affirms an order of the county court allowing a claim held by respondent against the estate of one Victor H. Stevens, deceased.

From the findings it appears that the claim was filed with the then administrator of the estate on April 13, 1913; that it was allowed by the administrator and approved by the county court on April 17, 1913, and the claimant advised of such allowance and approval; that thereafter, and in July, 1914, the county court, pursuant to the provisions of chapter 207 of Laws of 1913, issued its order, which, after reciting that the administrator had filed his report showing all the claims presented against the estate and the administrator’s action thereon, fixed a date when such report would be heard and acted upon by the county court; that this order was served on claimant; that it contained nothing to advise him that the court would, upon such hearing, review its own action theretofore had on any claim; that upon the return day of said order, the county court entered an order rejecting the claim; that such order based such rejection upon the ground that the claim was not properly verified; that thereafter claimant brought this present proceeding wherein he sought to have the county court vacate its order of rejection; that the county court [388]*388did vacate such order; and that from such order vacating the former order of the county court appeal was taken to the circuit court. It was the action affirming the county court from which this appeal has been taken.

[i] There is absolutely no merit in appellant’s contentions herein. When,.on April.14, 1913, the county court made its order approving the claim, such action was final. Said court could not thereafter vacate such order except in a proceeding seeking its vacation and upon proper notice to the claimant. Chapter 207 of the Daws of 1913 (which provides for a hearing after the expiration of the time for filing claims, upon which hearing the county court shall act upon all claims filed) had no application to this particular claim, for the very patent reason that such claim had been acted upon by such ccunty court before such law went into effect.

[2, 3] There is no merit in the contention of appellant that Ú e verification of the claim was insufficient. It is quite probable that the verification was made on a blank form, following- the wording of the statute of the state wherein such verification was executed. While the words of such verification do not follow the language of our statute, they do contain language fairly covering every requirement of our statute. The appellant contends that the verification was insufficient, because it purports to have been made by an assistant treasurer of a company, witnout any showing that such'company was a corporation. It matters not whether the claimant is a corporation or a partnership; it appearing that the party making the affidavit was the assistant treasurer of such company whatever its nature, it appeared that he was one who, from the very nature of his official position, would be qualified to make the affidavit of verification. Appellant relied upon the decision of this court in Detroit Automatic Scale Co. v. Torgeson, 36 S. D. 564, 156 N. W. 86. In that case, one purporting' merely to be the agent of claimant company made the • verification; and this court held that the mere statement that a person making the affidavit was an agent of a company did not show competency to make such an affidavit, or any reason why the affidavit was not made by the claimant himself. There is no similarity in the two cases. One occupying the position of treasurer, or assistant treasurer, of a company of whatever nature, must be presumed to be [389]*389possessed of sufficient knowledge of the claims held by such company to render him competent to verify such claims. Furthermore, if such claimant was not a corporation, but, instead, a partnership, and the party making the verification was not a member of such partnership, yet his being in a position where he must be presumed to know the facts sufficiently explains why the affidavit was not made by a member of the partnership.

The judgment appealed from is affirmed.

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WHITING, J.

Appeal from a judgment based upon findings of fact and conclusions of law, which judgment affirms an order of the county court allowing a claim held by respondent against the estate of one Victor H. Stevens, deceased.

From the findings it appears that the claim was filed with the then administrator of the estate on April 13, 1913; that it was allowed by the administrator and approved by the county court on April 17, 1913, and the claimant advised of such allowance and approval; that thereafter, and in July, 1914, the county court, pursuant to the provisions of chapter 207 of Laws of 1913, issued its order, which, after reciting that the administrator had filed his report showing all the claims presented against the estate and the administrator’s action thereon, fixed a date when such report would be heard and acted upon by the county court; that this order was served on claimant; that it contained nothing to advise him that the court would, upon such hearing, review its own action theretofore had on any claim; that upon the return day of said order, the county court entered an order rejecting the claim; that such order based such rejection upon the ground that the claim was not properly verified; that thereafter claimant brought this present proceeding wherein he sought to have the county court vacate its order of rejection; that the county court [388]*388did vacate such order; and that from such order vacating the former order of the county court appeal was taken to the circuit court. It was the action affirming the county court from which this appeal has been taken.

[i] There is absolutely no merit in appellant’s contentions herein. When,.on April.14, 1913, the county court made its order approving the claim, such action was final. Said court could not thereafter vacate such order except in a proceeding seeking its vacation and upon proper notice to the claimant. Chapter 207 of the Daws of 1913 (which provides for a hearing after the expiration of the time for filing claims, upon which hearing the county court shall act upon all claims filed) had no application to this particular claim, for the very patent reason that such claim had been acted upon by such ccunty court before such law went into effect.

[2, 3] There is no merit in the contention of appellant that Ú e verification of the claim was insufficient. It is quite probable that the verification was made on a blank form, following- the wording of the statute of the state wherein such verification was executed. While the words of such verification do not follow the language of our statute, they do contain language fairly covering every requirement of our statute. The appellant contends that the verification was insufficient, because it purports to have been made by an assistant treasurer of a company, witnout any showing that such'company was a corporation. It matters not whether the claimant is a corporation or a partnership; it appearing that the party making the affidavit was the assistant treasurer of such company whatever its nature, it appeared that he was one who, from the very nature of his official position, would be qualified to make the affidavit of verification. Appellant relied upon the decision of this court in Detroit Automatic Scale Co. v. Torgeson, 36 S. D. 564, 156 N. W. 86. In that case, one purporting' merely to be the agent of claimant company made the • verification; and this court held that the mere statement that a person making the affidavit was an agent of a company did not show competency to make such an affidavit, or any reason why the affidavit was not made by the claimant himself. There is no similarity in the two cases. One occupying the position of treasurer, or assistant treasurer, of a company of whatever nature, must be presumed to be [389]*389possessed of sufficient knowledge of the claims held by such company to render him competent to verify such claims. Furthermore, if such claimant was not a corporation, but, instead, a partnership, and the party making the verification was not a member of such partnership, yet his being in a position where he must be presumed to know the facts sufficiently explains why the affidavit was not made by a member of the partnership.

The judgment appealed from is affirmed.

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184 N.W. 205, 44 S.D. 385, 1921 S.D. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baum-iron-co-v-carlock-sd-1921.

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