Niblack v. Goodman

67 Ind. 174

• Court: Indiana Supreme Court
• Decided: May 15, 1879
• Status: Published

Opinions

Howk, J.

On the 3d day of March, 1876, the appellee, Charles Goodman, filed a claim against the estate of Albert G. Sloo, deceased, in the court below, which said claim was based upon the following complaint to wit:

“State oe Indiana, \ In the Knox Circuit Court, “Knox County, j ’ February Term, 1875.

“Charles Goodman complains of Harriet Sloo, administratrix of the estate of Albert G. Sloo, deceased, and says that heretofore, to wit, on the 20th day of January, 1855, the said plaintiff obtained a judgment against the said Alhei’t G. Sloo, deceased, in the Supreme Court of the county of New York, in the State of New York, for the sum of thirty-one thousand three hundred and forty-four and dollars ($31,344.44), a copy of which judgment is filed and made a part hereof, marked ‘B’; that the principal and the interest accrued thereon are now due and unpaid, amounting to the sum of $'68,957.70. And the plaintiff' now files this his said claim against said administratrix, and asks that the same may he allowed as a claim against said estate, in the hands of said administratrix, and for all other proper relief.”

The exhibit “B,” filed with this complaint, was apparently a copy of certain, entries from a judgment docket. It contained the names of the parties to the judgment, plaintiff and defendant, the names of the plaintiff’s attorneys, the date and the amount of the judgment, and nothing more. To this copy there was appended what purported to be the certificate of the clerk of the county of New York, dated January 2d, 1875, to the effect that it was “a correct transcript from the docket of judgments,” kept in his office, of a judgment rendered in the Supreme Court of the State of New York, for said county.

The first entry in the record of this cause, after setting out the above complaint and exhibit, was made at the September term, 1877, of the court below, when the case was entitled in the name of the appellee against the. appellant, William E. Niblack, administrator de bonis non of the estate of Albert Gr. Sloo, deceased, with the will annexed.

The appellant, Niblack, then filed his answer, in three paragraphs, in substance as follows :

1. A general denial;

2. That the judgment described in the appellee’s complaint was fully paid and satisfied before the commencement of this suit; and,

8. That the cause of action mentioned in said complaint did not accrue within twenty years before the commencement of this action, and this suit was not commenced within eighteen months after the death of said decedent.

To the second and third paragraphs of this answer, the appellee replied by a general denial; and to the third paragraph the appellee further replied in two affirmative or special paragraphs, numbered respectively 2 and 3. To the second and third paragraphs of appellee’s reply, the appellant demurred, for the alleged insufficiency of the facts therein respectively to constitute valid replies to the third paragraph of bis answer. These demurrers were severally overruled by the court, and to each of these decisions the appellant excepted.

The issues joined were tried by the court without a jury, and a finding was made for the appellee, against the appellant, in the sum cf $75,226.50. The appellant’s motion for a new trial was overruled, and to this ruling he excepted, and thereupon it was adjudged by the court that the appellant, out of the assets of said estate in his hands to be administered, and in due course of administration, do pay the appellee the amount of the said finding, from which said judgment this appeal is now here prosecuted.

In this court the appellant has assigned, as errors, the following decisions of the circuit court:

“ 1. The complaint does not state facts sufficient to constitute a cause of action ;

“ 2. The court erred in overruling the demurrer to the amended second paragraph of plaintiff’s reply to the third paragraph of defendant’s answer ;

“ 3. The court erred in overruling the demurrer to the amended third paragraph of plaintiff’s reply to the third paragraph of defendant’s answer;

“ 4. The court erred in overruling appellant’s motion for a new trial.”

Wo will consider and decide the questions presented by these alleged errors, in the order of their assignment.

1. The first error assigned by the appellant calls in question the sufficiency of the appellee’s complaint, as a cause of action against the appellant, after issues of fact and law have been joined thereon, and the trial of those issues and the finding of the court thereon. It may be conceded that the complaint was informal, and would have been, perhaps, technically insufficient, if it had been objected to in the proper mode and at the proper time. It was apparently prepared before the appellant assumed the duties and trusts of his administration, against his predecessor in the trust. When the appellant appeared as defendant to the appellee’s action, the complaint ought to have been amended by striking out the name of Harriet Sloo, and inserting the name of the appellant, in his representative character, as the defendant therein. This was a mere formal amendment, which might have been made at any time in the court below, upon the motion of either party, and in this court it will be regarded as having been made.

The appellee’s cause of action, as stated in his complaint, was a claim against the estate of Albert Gr. Sloo, deceased; and if the legal representative of the decedent attended in court, and made all necessary defence to the claim, it was a matter of little importance, whether the name of such representative was or was not mentioned in the “ succinct statement of the nature and amount” of the claim, required by section 62 of the decedents’ estates act. 2 R. S. 1876, p. 512. We think the complaint stated facts sufficient to constitute a cause of action against the estate of said decedent, and that the appellant’s objection thereto, in this court, is not well taken.

2. In the second paragraph of his reply to the third paragraph of the appellant’s answer, the appellee alleged, in substance, that on the 2d day of April, 1860, the said decedent, by his certain instrument of writing, a copy of which was filed with and made part of said reply, then and there and thereby admitted that he did owe and was indebted to the appellee, for and on account of said judgment as stated in the complaint, and then aud there acknowledged the same as a continuing obligation, and then and thereby provided that his said assignees should pay said judgment out of the property therein assigned and transferred to them; but the appellee said that the said assignees did not pay said judgment, or any part thereof, but that the same was still unpaid.

In the third paragraph of his answer, as we have seen, the appellant set up, in bar of the appellee’s action, the limitation mentioned in the fifth clause of section 211 of the practice act, wherein it is provided that “The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards :******

“Fifth. Upon contracts in writing, judgments of a court of record, and for the recovery of the possession of real estate — within twenty years.” 2 R. S. 1876, pp. 122, 124.

To meet the requirements of section 217 of the code, and to show that the appellee’s action was not commenced within the time limited in that section, it was further alleged in said third paragraph, that the suit was not commenced within eighteen months after the death of the decedent. • 2 R. S. 1876, p. 127.

The second paragraph of the appellee’s reply was evidently prepared with the view of obviating the defence set up- in the third paragraph of the answer, under and by force of the provisions of section 220 of the practice act. 2 ,-R. S. 1876, p. 128. This section reads as follows :

“ See. 220. Uo acknowledgment or promise shall be evidence of a new or continuing contract whereby to take the case out of the operations of the provisions of this chapter [article], unless the same be contained in some writing,signed by the party to be charged thereby.”

It will be observed that the provisions of this section are wholly negative in their character. It defines what shall not he evidence of a new or continuing contract; but it does not declare in terms what shall be evidence of such contract. It seems to us, however, that by implication, and perhaps by fair construction, this section provides, that an acknowledgment or promise, contained in some writing signed by the party to be charged thereby, shall be evidence of a new or continuing contract, by which a case upon contract may be taken without the operation of the statute of limitations. "We say a case upon contract, because the words “ new or continuing contract,” as used in this section, necessarily imply the existence of an old or prior contract, upon which the “ case ” is founded, which old contract has been renewed or continued by an acknowledgment or promise, contained in some writing signed by the party to be charged thereby. The question presented for our decision, by the alleged error of the court helow, in overruling the appellant’s demurrer to the second paragraph of the appellee’s reply, is this: Is a judgment a contract, or in the nature of a contract, in such manner and to such an extent that an acknowledgment or promise, properly made in relation thereto, will be evidence of a new or continuing contract, by which a case founded on such judgment will be taken out of the operation of the statute of limitations ? It seems to us, that this question must be answered in the negative.

We are aivare, that the decisions of the different courts of last resort, in the different States in the United States, are not in harmony on the question, as to whether a judgment is or is not a contract or in the nature of a contract. But, in this State, it would seem that the question is not an open one. For, in the case of Kimball v. Whitney, 15 Ind. 280, some of the parties to the record had sued upon a judgment recovered by them in the State of Ohio; and to this suit the defendants had pleaded a statute of Ohio, which limited au action upon “ a specialty, or any agreement, contract, or promise in writing,” to fifteen years^ but contained no limitation, in terms, of actions upon judgments. It was held by this court, that a judgment was not included or embraced in any of the terms used in the statute, and that, for this reason, the plea of the statute was wholly irrelevant and inapplicable to the suit upon the judgment, and might be properly rejected on motion. It is clear also, we think, from the phraseology of the fifth clause, above quoted, of section 211 of the practice act, that a judgment is not a contract, or in the nature of a contract, within the purview and meaning of the statute. Eor, if a judgment had been a contract within the intent and meaning of the law, the Legislature would hardly have provided, as they have, a limitation of actions upon both “ contracts in writing” and “judgments of a court of record.” It seems to us, therefore, that the provisions of sections 220, above quoted, are-not and can not be made applicable to a suit upon a judgment, so as to take the case out of the operation of the statute of limitations. King v. Manville, 29 Ind. 134.

The acknowledgment of the appellant’s testator, counted upon by the appellee, in the second paragraph of his reply, as sufficient to take this case out of the operation of the statute of limitations, was contained in a general assignment in writing, executed by the testator, in his lifetime, to Benjamin H. Cheever and James "Wiles, of all the estate, property and elfects, of every kind and description and wheresoever situate, of and belonging to him, for the benefit of his creditors. This assignment was dated on the 3d day of February, I860'; and it was stipulated therein, among other things, that the said Cheever and Wiles, out of the proceeds of the assigned property, should pay the judgment sued on by the appellee in this action. It contained au acknowledgment of the existence of the appellee’s judgment, within twenty years before the commencement of this suit; and it may be reasonably inferred from the terms of the assignment, that the judgment was then unpaid. The assignees, Cheever and Wiles, were directed to' pay the judgment out of the proceeds of the assigned property; but. there was nothing in the assignment which could be fairly construed to be a promise or contract by the assignor, the appellant’s testator, that he would pay the judgment. The appellee was not a party to the contract of assignment; and it can not be said, therefore, that the acknowledgment of the judgment, contained in the written assignment, was made by appellant’s testator either to the appellee or- to his agent.

If it were conceded, therefore, that an acknowledgment or promise, made by a judgment debtor in relation to the judgment, and contained in some writing signed by him, would be such evidence as would take a suit upon the judgment without the operation of the statute of limitations, a point which we need not and do not decide in this case, we are clearly of the opinion that such acknowledgment or promise would not be sufficient evidence for that purpose, in any case, unless it was made to the judgment creditor, or to his agent. An acknowledgment or promise, whenever and wherever applicable, will not be available in any case, as it seems to us, to take a suit otherwise barred by the statute of limitations, without the operation of the 'statute, when such acknowledgment or promise has not been made to the creditor or -to his agent. Story Con., sec. 1430 ; Keener v. Crull, 19 Ill. 189 ; Kyle v. Wells, 17 Pa. State, 286; Sibert v. Wilder, 16 Kan. 176; McKinney v. Snyder, 78 Pa. State, 497.

In our opinion, therefore, the acknowledgment of the judgment, relied upon by the appellee in the second paragraph of his reply, was not sufficient to take his case out of the operation of the statute of limitations; and for this reason we think that the court erred in overruling the ap- • pedant’s demurrer to this paragraph of reply.

8. The third error complained of by the appellant is the decision of the court in overruling his demurrer to the . third paragraph of the reply to the third paragraph of his answer. In the third paragraph of his reply, the appellee alleged, in substance, that on the 11th day of Jauuary, 1875, Harriet Sloo was the administratrix of the estate of said Albert Gr. Sloo, deceased, and that the said estate was then pending in said court for settlement; that on the day last named the appellee filed the said claim in the office of the clerk of said court, for the purpose of having the same allowed by the court against said estate, and within twenty years next after the rendition of said judgment; and that, after the filing of said claim in the office of the clerk, the said Harriet Sloo died, and the appellant, William E. Niblack,was appointed and qualified as administrator of the estate of said decedent, and had since been and then was the administrator of said estate.

It will be seen that the allegations of this third paragraph of reply were nothing more, in legal effect, than an argumentative denial of the third paragraph of the appellant’s answer, which set up the statute of limitations. With a general denial already pleaded to the third paragraph of answ er, in the first paragraph of reply, it seems to us that this third paragraph of reply might have been properly rejected on motion ; but we do not think that the court erred in overruling the demurrer to this third paragraph.

4. Haviug reached the conclusion that the court erred in overruling the appellant’s demurrer to the second paragraph of the reply, which error must necessarily reverse the judgment of the court below and result in a new trial of the cause, it is unnecessary, perhaps, for us to consider or decide any of the questions presented by the fourth alleged error, the overruling of the appellant’s motion for a new trial of this cause. There is one question, however, presented by this error, which it may not be improper for us to consider and decide now, as it may have an important hearing on the proper decision of the cause, on a new trial thereof. That question is, when was this action commenced ? The record of the cause, in this court, shows that the action was commenced on the 3d day of March, 1876, or more than twenty years after the rendition of the judgment sued on ; while the appellee has alleged, as we have seen, in the third paragraph of his answer, that the action was commenced on the 11th day of January, 1875, or within twenty years after the rendition of the judgment. . In regard to this question, there would seem to be no controversy between the parties as to the facts of the case ; but the controversy is, as to the legal effect of those facts, and the law applicable thereto.

On the 11th day of January, 1875, the appellee, by his attorneys, filed a complaint, in the court below, of which the following is a copy:

“ State of Indiana, 1 In the Knox Circuit Court,

“ Knox County, f ' February Term, 1875.

“Charles Goodman complains of Harriet Sloo, administratrix of the estate of Albert G. Sloo, deceased, and James Wiles and- Gheever, assignees of said Albert G. Sloo, and says that heretofore, to wit, on the 20th day of January, 1855, the said plaintiff obtained a judgment against the said Albert G. Sloo, deceased, in the Supreme Court of the county of New York, in the State of New York, for the sum of thirty-one thousand three hundred and forty-four ¡Vo dollars, a copy of which judgment is filed and made part hereof, marked ‘B’; that the principal and the interest accrued thereon are due and unpaid, amounting to the sum of $68,957.76: and the plaintiff now files this his said claim against said administratrix and said assignees, an! asks that the same may be allowed as a claim against said estate, either in the hands of said administratrix or in the hands of said assignees, and for all other and proper relief.”

This complaint was signed by the attorneys of the plaintiff, the appellee; and the case was apparently entered at once upon the issue docket of the court, for issue and trial. It does not appear, that, at the time of the filing of this complaint, any summons was issued thereon for the defendants therein named to appear and answer the complaint; but the record of this cause shows, that, in that action, at the February term, 1875, of the court below, to wit, on the 8th day of February, 1875, the following order was made and entered by the court, upon its order book, to wit:

“ Charles Goodman “Harriet Sloo, Administratrix, etc., et al. v. Civil Action.

“ Comes now the plaintiff, by Denny & Denny, his attorneys, and on motion this cause is continued for process.”

The record of this cause further shows that, at the ensuing May term, 1875, of the court below, to wit, on the 6th day of May, 1875, another order was made and entered by the court, upon its order book, in that action, which order was in the words and figures following, to wit:

“ Charles Goodman v, uivn -¿xutiuu. “ Harriet Sloo, Administratrix of “ Albert G. Sloo, deceased, et al. J Civil Action,

“ Comes the plaintiff', by Denny & Denny and Eeily & Johnson, his attorneys, and shows to the court, by due proof, that said defendant Harriet Sloo, administratrix of the estate of Albert G. Sloo, deceased, has been duly summoned herein more than ten days before the first day of the present term of this court, and thereupon said de-' fendant Harriet appears by F. W. Viehe, her attorney, and moves the court to strike this cause from the docket, and day is given.”

Two days afterward, on the 8th day of May, 1875, and at the same term of the court, an order was made by the court, in that action, and entered upon the order book, as shown by the record of this Cause. This order was as follows :

“ Charles Goodman v. Civil Action. | “Harriet Sloo, Administratrix of } No. 869. “ Albert G. Sloo, deceased, “ James Wiles,-Cheever.

“ Come now the plaintiff' and the defendant Harriet Sloo, administratrix of the estate of Albert G. Sloo, deceased, by their attorneys, and the court, being sufficiently advised on the motion of said defendant Harriet to strike this cause from the docket, sustains said motion, and this cause is now by the cqurt ordered stricken from the docket, at plaintiff’s costs, and leave is given plaintiff to file his claim herein against the estate of said Albert G. Sloo, deceased, and have'the same entered upon the appearance docket of this court.”

It would seem, that the appellee did not attempt to avail himself of the leave asked for and granted in the last order of the court above quoted, for neatly ten months after it was made and entered, or until the 3d day of March, 1876. The record of this cause shows, that, on the day last named, the appellee took his complaint in his original action, and having erased or struck out therefrom the names of “ James Wiles and- Cheever,” as defendants therein, and everything relating to them either in the body of the complaint or in the prayer for relief, he caused the same to be entered upon the appearance docket of the court, as a claim against the estate of Albert G. Sloo, deceased. In the copy of this complaint, set out in this opinion, we have italicized those portions of it which were thus stricken out by the appellee, at 'the time the complaint was used for the commencement of this suit.

This claim, not having been admitted on the appearance docket by either the executrix or administrator of the. decedent, was transferred to the issue docket of the court for issue and trial, and became the foundation of the case now before us.

It is claimed by appellee’s counsel, as we understand them, that the case at bar is the same case as the suit against the administratrix of Albert G-. Sloo, and "Wiles and Cheever, assignees, etc.; which latter suit, as we have seen, was stricken from the docket some ten months before this case was commenced. The original suit was properly placed upon the issue docket; and it can not be correctly said that the suit was commenced, until a summons had been issued on the appellee’s complaint, or after the 8th day of Eebruary, 1875. This suit was finally disposed of by the order of the court, on the 8th day of May, 1875. But the case now before us, in any view of it, can not be said to have been commenced, until it was placed on the appearance docket, on the 3d day of March, 1876, as a claim against the decedent’s estate; and certainly not, unless we first declare that certain amended sections of the act providing for the settlement of decedents’ estates, which have been recognized and practised upon by the courts of this State for nearly a quarter of a century, are invalid and absolutely void. This is what the appellee’s counsel ask us to do, in this ease, in reference to those amended sections of the statute in question, which prescribe the mode in which suits may be instituted and prosecuted against a decedent’s estate, on claims against the decedent. The sections referred to are the amended sections 65 and 66 “ of an act providing for the settlement of decedents’ estates,” etc., approved June 17th, 1852. By an act approved March 4th, 1853, the Legislature attempted to amend each one of these two sections; but, under the construction given by this court to the 21st section of article 4, of the constitution of this State, of 1851, in the case of Langdon v. Applegate, 5 Ind. 327, decided at the November term, 1854, the amendments were illegal and void, for the reason that the original sections were not set out in the amendatory act. For thirteen years thereafter, and until the case of The Greencastle Southern Turnpike Co. v. The State, ex rel., 28 Ind. 382, was decided by this court, at its November term, 1867, this construction of the requirements of the constitution, in relation to the revision and amendment of acts or sections, was recognized and approved as the true and correct construction, not only by the courts, but by the General Assemblies of the State, which convened from time to time.

Accordingly, the General Assembly of 1855, evidently considering the amendatory act of March 4th, 1853, as absolutely null and void, again amended sections 65 and 66 of the original act, by an act approved February 20th, 1855, in which latter act the original sections and the amended sections were both set out, as required by the construction given to the 21st section of article 4 of the constitution, by this court, in Langdon v. Applegate, supra. Acts 1855, p. 81. These amended sections were set out in the body of the decedents’ estates act, in the Revised Statutes of Indiana, as published by Gavin & Hord, 2 G. & H. 503, and in the Statutes of Indiana, as published by Davis, 2 R. S. 1876, p. 515. Since the enactment of these amended sections, in 1855, they have always been regarded by the courts of this State as the law regulating the institution and prosecution of suits against decedents’ estates, on claims against decedents; and in connection therewith, and in the construction thereof, a system of practice has grown up and become established, which, we think, ought not to be lightly changed.

Note. — Niblack, J., being a party to this cause, was absent during its consideration.

In the case of The Greencastle Southern Turnpike Co. v. The State, supra, this court construed the 21st section of article 4 of the constitution, to require only that the amended section “shall be set forth and published at full length,” in the amendatory act; and this is now the recognized and accepted construction of the constitutional provision in question. Of course, the general effect of this later decision of this court was to give vitality and force to such amendatory enactments as had, before that time, been regarded as inoperative and void by reason of the fact that the original section had not been set out at length therein. Recognizing this general effect, the Legislature, by an act approved March 9th, 1867, repealed all laws theretofore passed, not in conformity with the decision of this court in the case of Langdon v. Applegate, supra. 1 R. S. 1876, p. 941. This act repealed the amendatory act of March 4th, 1853, before referred to. This repeal, under the decisions of this court, revived the original sections 65 and 66 of the act of June 17th, 1852, providing for the settlement of decedents’ estates, and these original sections are now in full force as the law of this State, on the subject-matter thereof.

We are of the opinion that the case now before us was not commenced by the appellee, at least until he had caused his claim to be entered on the appearance docket.

We do not now consider the other questions arising under the alleged error of the court, in overruling the appellant’s motion for a new trial, as those questions depend to some extent upon the evidence, and the cause will probably be re-tried.

The judgment is reversed, at the appellee’s costs, and the cause is remanded with instructions to sustain the demurrer to the second paragraph of the reply, and for further proceedings in accordance with this opinion.