Downer & Kenney v. Howard

Supreme Court of Vermont

Downer & Kenney v. Howard

69 Vt. 268

DecidedOctober 15, 1896

StatusPublished

This text of 69 Vt. 268 (Downer & Kenney v. Howard) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Downer & Kenney v. Howard, 69 Vt. 268 (Vt. 1896).

Pincite

Opinion

Start, J.

It appears from the agreed statement of facts, that Chester Downer and the defendant, Austin Howard, were formerly partners; that Chester Downer deceased February 19, 1890; that commissioners on his estate were appointed and held their first meeting June 25, 1890; that the defendant presented a claim to the commissioners, but no hearing was had before them until July, 1891; that the only matter investigated by the commissioners was the standing of the book accounts between the parties; and that the notes in question were not presented to the commissioners. Chester Downer, at the time of his decease, held three notes against the defendant; and, on the 8th day of October, 1890, the plaintiffs brought this suit declaring on these notes, and secured the same by attachment.

The defendant insists that the plaintiffs are estopped from prosecuting this suit, by reason of their appearing before the commissioners and adjusting the accounts of the parties. When this case was before us on demurrer to the defendant’s pleas, it was held, that, when an executor or administrator commences an action to recover a debt or claim in favor of the estate against a -person having a claim or demand against it, either before or after such person has presented his claim to the commissioners for allowance, and before they have acted thereon, the jurisdiction of the probate court in respect to the claims or demands of either party is ousted by the commencement and pendency of such action; [270]*270and that all proceedings thereafter in the probate court, during the pendency of such action, in respect to the claims or demands of either party, are absolutely void. Kenney and Downer, exrs., v. Howard, 67 Vt. 375. It appears from the agreed statement of facts, that this suit was commenced before the commissioners acted upon the defendant’s claim, and was pending in the county court when a hearing was had before them. Therefore, the county court had exclusive jurisdiction of the respective claims of the parties; and the claim sought to be recovered is not barred by reason of anything that transpired before the commissioners, or the probate court. Nor are the plaintiffs estopped from prosecuting this action by reason of their appearing before the commissioners, who acted without jurisdiction, and contesting the defendant’s claim. The judgment of the court below was correct. As the parties have, by their stipulation, reserved the right to litigate other questions raised by the pleadings, the judgment will be reversed proforma, to enable them to do so.

Judgment reversed pro forma, and cause remanded, with costs to the plaintiffs.

Free access — add to your briefcase to read the full text and ask questions with AI

Start, J.

It appears from the agreed statement of facts, that Chester Downer and the defendant, Austin Howard, were formerly partners; that Chester Downer deceased February 19, 1890; that commissioners on his estate were appointed and held their first meeting June 25, 1890; that the defendant presented a claim to the commissioners, but no hearing was had before them until July, 1891; that the only matter investigated by the commissioners was the standing of the book accounts between the parties; and that the notes in question were not presented to the commissioners. Chester Downer, at the time of his decease, held three notes against the defendant; and, on the 8th day of October, 1890, the plaintiffs brought this suit declaring on these notes, and secured the same by attachment.

The defendant insists that the plaintiffs are estopped from prosecuting this suit, by reason of their appearing before the commissioners and adjusting the accounts of the parties. When this case was before us on demurrer to the defendant’s pleas, it was held, that, when an executor or administrator commences an action to recover a debt or claim in favor of the estate against a -person having a claim or demand against it, either before or after such person has presented his claim to the commissioners for allowance, and before they have acted thereon, the jurisdiction of the probate court in respect to the claims or demands of either party is ousted by the commencement and pendency of such action; [270]*270and that all proceedings thereafter in the probate court, during the pendency of such action, in respect to the claims or demands of either party, are absolutely void. Kenney and Downer, exrs., v. Howard, 67 Vt. 375. It appears from the agreed statement of facts, that this suit was commenced before the commissioners acted upon the defendant’s claim, and was pending in the county court when a hearing was had before them. Therefore, the county court had exclusive jurisdiction of the respective claims of the parties; and the claim sought to be recovered is not barred by reason of anything that transpired before the commissioners, or the probate court. Nor are the plaintiffs estopped from prosecuting this action by reason of their appearing before the commissioners, who acted without jurisdiction, and contesting the defendant’s claim. The judgment of the court below was correct. As the parties have, by their stipulation, reserved the right to litigate other questions raised by the pleadings, the judgment will be reversed proforma, to enable them to do so.

Judgment reversed pro forma, and cause remanded, with costs to the plaintiffs.

Cite This Page — Counsel Stack

Bluebook (online)

69 Vt. 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downer-kenney-v-howard-vt-1896.

Opinion

Related

Cite This Page — Counsel Stack