State Ex Rel. Paramount Publix Corp. v. District Court

1 P.2d 335, 90 Mont. 281, 76 A.L.R. 1371, 1931 Mont. LEXIS 105

• Court: Montana Supreme Court
• Decided: July 6, 1931
• Docket: No. 6,895.
• Status: Published

Opinions

A claim against an estate may be amended after the expiration of the time for presentation of claims. (Chinn Land LivestockCo. v. Stewart, 69 Colo. 598, 196 P. 189; In re Davis'Estate, 142 Minn. 187, 171 N.W. 778; Dubbs v. Haworth,102 Kan. 603, 171 P. 624; Estate of Hidden, 23 Cal. 362.)

Great liberality is permitted in allowing these amendments. (White v. Deering, 38 Cal.App. 516, 179 P. 401; Landis v. Woodman, 126 Cal. 454, 58 P. 857; Wise v. Outtrim, 139 Iowa, 192, 130 Am. St. Rep. 301, 117 N.W. 264; Westbay v.Gray, 116 Cal. 660, 48 P. 800; Chariton Nat. Bank v.Wicher, 163 Iowa, 571, 145 N.W. 299; Longwell v. Mierow,130 Wis. 208, 109 N.W. 943; Smith v. Funk, 141 Okla. 188,284 P. 638; Brenton v. Neal, (Iowa) 229 N.W. 235.) The last cited case holds that although the time for presentation of claims has expired, the amendment will be allowed if the matter set out is germane to the original claim filed and the cause of action embraced in the original statement is not changed. (Hammond v. Waddingham, 127 Wn. 234, 220 P. 796.)

The claim is in the nature of a pleading and the provisions of the Revised Codes of 1921 (secs. 9008-9832) are expressly made applicable to probate proceedings (sec. 10365, Id.; State exrel. Hahn v. District Court, 83 Mont. 400, 272 P. 525); this includes section 9187, providing for such amendments. "A court is rarely justified in refusing a party leave to amend his pleading so that he may properly amend his case and obviate any objection that the facts which constitute a cause of action or defense are not embraced within the issues or properly presented by the pleading." (1 Bancroft's Code Pleading, pp. 740-742; Ramezzano v. Avansino, 44 Nev. 72, 189 P. 681; McKissick Cattle Co. v. Anderson, 62 Cal.App. 558, 217 P. 779; Foste v.Standard Life Acc. Ins. Co., 26 Or. 449, 38 P. 617;Neilson v. Title Guaranty Trust Co., 92 Or. 243,180 P. 517; Marr v. Rhodes, 131 Cal. 267, 63 P. 364; CushingGasoline Co. v. Hutchins, 93 Okla. 13, 219 P. 408; SecurityNat. Bank v. McCutchan, 111 Kan. 682, 208 P. 636.)

Refusal to permit an amendment which is proposed at an opportune time and should be made in furtherance of justice is an abuse of discretion. (1 Bancroft on Code Pleading, p. 744;Senate Silver Min. Co. v. Hackberry C. Min. Co., 24 Ariz. 481,211 P. 564; Norton v. Bassett, 158 Cal. 425,111 P. 253; McDougald v. Hulet, 132 Cal. 154, 64 P. 278; SanFrancisco Sub. Home Bldg. Soc. v. Leonard, 17 Cal.App. 254,119 P. 405; Jensen v. Kohler, 93 Wn. 8, 159 P. 978;Fowlis v. Heinecke, 87 Mont. 117, 287 P. 169.)

In Chase v. Cable Co., 67 Okla. 322, 170 P. 1172, an amendment was made to correct a situation identical with the proposed amendment in this action, the only difference being that a mortgage was involved. (See, also, Mackroth v. Sladky,27 Cal.App. 112, 148 P. 978; Sawyer v. Somers Lumber Co.,86 Mont. 169, 282 P. 852; Hardie v. Peterson, 86 Mont. 150,282 P. 494.)

"Where the denial of the motion to amend may have the effect of finally determining the rights of the parties, the motion should be granted unless facts exist making it inequitable to do so." (49 C.J. 475; 21 Cal. Jur. 182-185.)

In Davis v. Superior Court, 35 Cal.App. 473,170 P. 437, 439, a situation similar to the one here presented was considered under section 473 of the California Code of Civil Procedure, the same as our section 9187, it was sought to amend a claim by attaching copies of contracts which had been omitted after the time for presentation of claims had expired. There the trial court also held that it did not have jurisdiction to allow the amendment. The court said: "Here, however, the facts constituting the claim as presented are fully and completely shown on its face, and reference is made to the particular contract which is identified. The contract is but the evidence by which the claim is to be established. Attaching a copy to the claim would in no sense change the substance of the claim." This is an original application for a writ of supervisory control. An alternative writ was issued. The respondents appeared by general demurrer to the petition, and the matter was regularly brought on for argument upon the merits.

It appears that George R. Cummings died on November 30, 1929, and that on December 14, 1929, Mrs. Albert Anderson was regularly appointed administratrix of his estate, and ever since has been, and now is, the duly appointed, qualified, and acting administratrix of such estate, which is now regularly in process of administration in Dawson county. On December 14, 1929, the administratrix published notice to creditors, requiring claims against the estate to be presented within four months after the first publication. The attorney for relator filed its claim against the estate, being under "the impression that notice to creditors had been given, but not informed and did not know when the time for publication expired," and "he was not advised of any action upon said original claim until some time in June, 1930, at which time said claim was rejected, and he was not notified of the reason of the rejection of said claim, and thereafter commenced an action in the district court" of Silver Bow county, "based upon said claim, and did not know of the defect or reason for the rejection of said claim until the end of April, 1931," after he had requested a trial of the action.

Pursuant to an order of the court made and entered July 14, 1930, first publication of a second notice to creditors was had on July 17, 1930, requiring creditors to present their claims against the estate within ten months. The action on the claim was set for trial May 4, 1931, but continued at the request of the administratrix until May 18, 1931, "the day after the expiration of notice to creditors." On or about the twelfth day of May, 1931, the attorney for the relator discovered that the original claim was rejected "because the copies of the contracts were not attached, and examined the statute and discovered it was necessary to attach copies of the contracts to the claim." Some time prior to February 2, 1931, the relator, through its attorney, filed an amended claim with the administratrix, based upon the same contracts, there being no copies of the alleged contracts attached thereto. It was rejected by the administratrix February 2, and filed with the clerk on April 7, 1931. The relator did not learn of the second publication of notice to creditors until May 12, 1931, five days prior to the expiration of the time permitted for the presentation of claims against the estate, nor that it was necessary to attach exact copies of the contracts to its claim made against the estate, and on May 16, 1931, one day before the bar of the statute of nonclaim, presented to the administratrix an amended claim against the estate, with copies of contracts attached, which were not true and correct copies of the contracts made the basis of the claim. This claim was disallowed by the administratrix on June 1, 1931, and filed with the clerk of the court on June 9, 1931.

On June 9, 1931, more than a month after the lapse of the time permitted for the presentation of claims according to the second publication of notice to creditors, the relator filed with the court a motion to be permitted to amend its amended claim against the estate by attaching true and correct copies of the contract upon which the claim against the estate is predicated. The matter was argued and presented to the court on June 13, 1931, and by the court taken under advisement until June 17, 1931, when the motion was denied. Hence this proceeding.

The only question presented for decision is whether the court was in error in denying the relator's motion to amend its claim against the estate after the lapse of the time prescribed by law for the presentation of claims.

So far as here pertinent, our statute provides: "All claims[1] arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever." (Sec. 10173, Rev. Codes 1921.) "If the claim be founded on a bond, bill, note, or other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited, if demanded, unless it be lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction." (Id., sec. 10177.) These statutory requirements are mandatory, unambiguous, and as plain as it is possible to express them.

By the terms of section 10177, a claim against the estate of a decedent, founded upon a writing which is neither lost nor destroyed, must be accompanied either by the original or a copy of it when presented to an executor or administrator for allowance, and, where not so accompanied, it is proper for the executor or administrator to reject it. (Burnett v. Neraal,67 Mont. 189, 214 P. 955, 956.) "Compliance with these provisions involves no difficulty, and a court cannot say that anything less than substantial compliance upon the part of the claimant meets the requirements." (Vanderpool v. Vanderpool,48 Mont. 448, 138 P. 772, 773.) "The reason for the rule is apparent. It is for the benefit of the estate. Both the form and the substance of the written instrument should be made known to the legal representative of the estate when the claim is presented. In many cases he would be unable otherwise to pass upon the claim intelligently. That an inspection of the original might frequently become material is obvious also." (Burnett v.Neraal, supra.)

It is true that the same pictures, and the same prices[2] therefor, are found in the contracts which are the foundation for the amended claim, and the proposed amended claim; but the amended claim is no claim without the contract or contracts upon which it is based, and, as the contracts do not support it, the administratrix was compelled to reject it. Now the proposed amended claim is founded upon claims different in form and substance from those appended to the amended claim. It will not do to pick out portions of two different contracts, disregarding other important features of the different contracts, and say they support the claim. The claim has no validity without the contract upon which it confessedly must be based. By no stretch of the imagination can it be said that the contracts are substantially the same.

To the amended claim, filed timely, are attached seven contracts. One gives the names of 33 photoplays with prices; a second gives the names of 28 photoplays with prices; a third gives the names of 10 photoplays with prices; a fourth gives the name of 1 photoplay with price; a fifth describes 24 Christie two-reel talking plays, 6 Paramount two-reel talking plays, 32 Paramount one-reel acts; 18 Paramount one-reel screen songs; 6 Paramount talker-tones; with prices. A sixth relates to a picture called "Why Bring That Up," Moran Mack "The Two Black Crows," with price, and specifications as to what shall be charged for admission (found in no other contract except this, and the one to be mentioned next); a seventh relates to a photoplay called "Welcome Danger," a Harold Lloyd production with price and restrictions as to the admission. To the amended claim proposed to be filed after the bar of the statute, five contracts are attached: The first gives the names of 8 photoplays with prices; the second of 10 photoplays with prices; the third 12 photoplays with prices; the fourth 10 photoplays with prices; the fifth 24 Christie two-reel plays with prices, 6 Paramount two-reel talking plays, 32 Paramount one-reel acts, 18 Paramount one-reel screen songs, 6 Paramount one-reel talker-tones. None of the photoplays named in the claim can be found in consecutive order in any of the contracts, and the following named photoplays are not specifically named either in the contracts attached to the claim filed in time, or to the contracts attached to the proposed amended claim, namely: "Saturday Night Kid, High Heels, Chinatown My Chinatown, Dangerous Females, Faro Nell, Brown Gravy, Weak but Willing, Marching to Georgia, Red Headed Hussy."

It would too greatly extend this opinion to point out the great differences which exist between the contracts embodied on the printed forms in the amended claim rejected June 1, 1931, and the copies of the contracts now proposed to be filled after the bar of the statute. Suffice it to say that the contracts appended to the amended claim are widely different in form and substance in many important particulars from those appended to the proposed amended claim.

Here the claimant was presumed to have known the law, and that it was incumbent upon it to accompany its claim with copies of the contracts upon which the claim is predicated. It had knowledge that the estate was in process of administration and made timely presentation of its claim, although not in correct form. It attempted to make amendment of its claim before the bar of the statute so as to attach copies of the contracts as by law required, but admittedly failed to attach[3] correct copies. Where a creditor attempts to present his claim for allowance, and for some reason it is not in proper form, no valid ground suggests itself as to why he may not be permitted to present it again in due form, provided he does so before the lapse of the time prescribed for the presentation of claims. (Lindsay v. Hogan, 56 Mont. 583, 185 P. 1118.) But where a substantial amendment is attempted after the bar of the statute, it comes too late, more particularly where, as here, the contract basis on which the claim is predicated is attempted to be materially altered. Neither the court nor the administratrix can waive the statutory requirements by permitting the filing of a claim after it has become barred for failure to present it, nor an amendment of a claim presented after the lapse of the statutory time for presenting claims by setting up a contract different from the one on which it was originally based. It would amount to giving recognition to the filing of a new claim after time, which cannot be allowed under the circumstances presented[4] in this case. The administratrix has no power to waive these mandatory provisions of the statute, nor may the court authorize her to do so. (Dillabough v. Brady, 115 Wn. 76, 196 P. 627.) A condition precedent to recovery on a claim presented to the administratrix, and by her rejected, is that it must be based on the claim as presented, and cannot give support to any other cause of action. (Sec. 10180, Rev. Codes 1921; Vanderpool v.Vanderpool, supra; Ullman Co. v. Adler, 59 Mont. 232,196 P. 157; Estate of Hildebrandt, 92 Cal. 433, 28 P. 486;Lichtenberg v. McGlynn, 105 Cal. 45, 38 P. 541; Barthe v.Rogers, 127 Cal. 52, 59 P. 310; Etchas v. Orena, 127 Cal. 588,60 P. 45; Stockton Sav. Bank v. McCown, 170 Cal. 600,150 P. 985.) To permit the plaintiff to come in with another amendment of its claim with a different contract after the lapse of the statutory period is, in our opinion, beyond the jurisdiction of the court.

In support of its position, the relator relies upon a decision of the district court of appeals, third district of California, in the case of Davis v. Superior Court, 35 Cal.App. 473,170 P. 437, under identical statutes. But in that case it is noteworthy that, while a copy of the contract made the basis of the claim, timely presented, was not physically attached to it, a copy of the contract was transmitted to the executrix under separate cover at the time the claim was mailed to her. In the opinion, the court pertinently observed: "It need hardly be stated, that a different question would arise if the proposed amendment introduced a new or substantially different claim."

However, on the authority of Roche Valley Land Co. v.[5] Barth, 67 Mont. 353, 215 P. 654, 655, it is argued that the notice to creditors is insufficient under section 10170, Revised Codes 1921, in not more specifically designating the place of residence or of business of the administratrix. The statute (sec. 10170) requires that the notice to creditors of the estate shall require all persons having claims against the decedent "to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice." The notice here states that claims against the estate are to be presented "at the office of F.S.P. Foss, Glendive, Montana." In the Barth Case it was said that "while no hard and fast rule can be laid down, the statute will not be satisfied unless the executor or administrator in his notice describe his place of residence or business with sufficient particularity so that a reasonable person may easily identify it." In that case, the notice simply stated that claims should be presented "to the executor or executrix at the city of Billings, in the county of Yellowstone, state of Montana." It was held insufficient, not being sufficiently specific, the city of Billings having a population of over 15,000 inhabitants. With respect to the notice before us, however, creditors are advised to present their claims at a specific place in Glendive, viz., the office of F.S.P. Foss. Foss is the attorney for the estate, and Glendive has a population considerably under 5,000. We do not think a reasonable person would have any difficulty in finding the place. The plaintiff does not appear to have been in any manner misled.

It would have been more in keeping with the purpose of the statute had the notice described the office of F.S.P. Foss, as a "law office," or given a more specific reference. However, under the circumstances in this case, the notice is, in our opinion, sufficient.

For the reasons stated, the writ is denied and the proceeding dismissed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICE MATTHEWS concur.