Lehman v. George

56 So. 167, 99 Miss. 798

• Court: Mississippi Supreme Court
• Decided: March 15, 1911
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

This cause was considered by us once before under the style of Lehman v. Powe, 95 Miss. 446, 49 South. 622, wherein we held that appellee’s claim had not been probated in the manner required by law. It's registration, therefore, did not stop the running of the statute of limitations, and consequently, before the application to amend was made, the claim had become barred. Cheairs v. Cheairs, 81 Miss. 662, 33 South. 414. The decree of the chancellor recited that: “The said E. B. George is permitted to amend the probation of his said claim in the manner and form and in the matters and things sought and set out in his said motion, and to file the said amendment with the clerk, and the clerk is directed to probate and allow the said claim when so amended.” We are not called upon to decide whether or not the chancellor has the power to enter a decree of this character where the statute of limitations is not involved; for he is, offcourse, without such power when the claim, the probate of which is sought to be amended, has become barred by the statute of limitations. To hold otherwise would result in the nullification of the statute.

The decree of the court below is reversed, and decree here dismissing appellee’s petition for leave to amend.

Reversed.