Stevens v. D. R. Dunlap Mercantile Co.

73 So. 570, 112 Miss. 524

• Court: Mississippi Supreme Court
• Decided: October 15, 1916
• Status: Published

Opinion

Sykes, J.,

delivered the opinion of the court.

This is the second appeal of this case to this court from a decree of the chancery court of George county. The appellee mercantile company filed its claim for probate against the estate of J. B. Stevens, deceased, with the chancery clerk of George county within the time allowed by the law. The appellant administrator filed his petition, averring that the claim of appellee against the said estate had not been probated in the manner required by law, and that the presentation of the claim to the administrator was not sufficient in law to authorize him to pay it out of the funds of the estate. He, therefore, prayed that the claim be disallowed. The chancellor sustained a demurrer of the appellee to this petition, and dismissed it. An appeal was then prosecuted to this court,' and the decree was reversed, and the cause remanded. The objection, in the first appeal which relates to this appeal, was that the clerk of the chancery court failed to follow the provisions of section 2106 of the Code of 1906, the said provision reading as follows:

“Thereupon, if the clerk shall approve, he shall indorse upon the claim the words following: ‘Probated and allowed for & — , and registered this — day of — , A. D. —, ’ and shall sign his name officially thereto. Probate, registration, and allowance shall be sufficient presentation of the claim to the executor or administrator. ”

From the report of this case in 67 So. 160, it appears that the' clerk actually registered this claim in his registry claim hook, but failed to make the proper notation, as above set forth on the claim. The decision of the court on that appeal holds that:

“Such probate, allowance, and registration is an official act of the clerk, and it is shown by his indorsement upon the claim itself; such indorsement being the mandatory requirement of the statute. The entry of the claim in the record of registration of claims will not avail to render it unnecessary for the clerk to approve the claim and enter his indorsement thereon, as required by law.”

Upon the remand of the case to the chancery court the appellee'-here, defendant in that court, filed an answer and cross-petition to the petition of the appellant, alleging, in substance, the following: It denies that the clerk did not approve the account; admits the clerk did not, at the time the claim was presented to him for probate, indorse thereon, “Probated and allowed for $ — , and registered this — day of —, A. D. 19 — ;” admits that he did not sign his name officially to said indorsement; but avers that the reason the clerk did not do so in the statutory form above provided was because of the fact that he but lately qualified as clerk, and was not informed as to his duties, and inadvertently neglected to indorse the claim as above set out; avers the fact to be that the claim was presented to the clerk for probate and registration in proper form and within the time allowed by law; that upon receipt of the samé the clerk filed and entered same upon the .register of claims, but by reason of his ignorance neglected at that time to indorse thereon the fact that the same was probated and allowed; that the said clerk in point of fact did allow, or intended to allow, the said claim, and was under the impression that he had done so by -registering it. The said cross-petition then asks that the court enter an order, directing the clerk now to make the proper indorsement upon the claim, as ■of the date the same, was actually presented to the clerk for probate, registration, and allowance. The cross-petition, asking for the above affirmative relief, was ■demurred to by petitioner. The demurrer was overruled, petitioner declined to answer it, and the court . entered a decree, ordering the clerk to. make the indorsement as prayed for on the claim as of the time it was originally filed for probate. From this decree this appeal is prosecuted. It is the contention of counsel for the appellee that the cross-petition avers, and the ■demurrer admits, that the chancery clerk as a matter of fact intended to approve the claim of the appellee at the time he registered it and did orally approve it, and that it is within the power of the chancery court to ■enter an order to rectify this omission; that in the first appeal of this case this court merely held that the •claim could not be paid unless the indorsement, as required by section 2106, appeared on the claim; and that this failure has now been rectified by the court. The appellant contends that the very life and vitality ■of a claim against the estate of a decedent depends upon the indorsement in accordance with section 2106 ap- . pearing upon the claim; that no claim is probated, registered, and allowed according to our statutes unless this indorsement is made thereon; that the only proof of the probate and allowance of the claim 'is this written indorsement; that the mere fact that .'the clerk intended to allow the claim is not a compliance with ihe statute; that there is no such thing under our law ■as a probate, registration, and allowance of a claim except that which appears as the indorsement of a claim in the words of the statute. It is further contended by counsel for the appellant that after the expiration of the one-year statute within which to pro-hate claims against the estate of a decedent, the court is without power to order the clerk, or the clerk is without power to allow this claim. Not only does appellant claim that it is barred by section 2106, requiring these claims to be probated, registered, and allowed within one year, but that it is also barred by the three-year statute of limitations relative to open accounts.

We have carefully examined the authorities cited in the able briefs of both counsel for appellant and appel-lee. It seems clear to us that, under section 2106 of the Code of 1906, before a claim may be paid by an administrator, it must not only have been properly itemized in writing, signed by the creditor, and the proper affidavit thereto attached, but it is also mandatory that the clerk indorse upon the claim the words, “Probated and allowed for $-, and registered this - day of- — , A. D. 19 — ,” and that he shall sign his name officially thereto. This probate, registration, and allowance is then a sufficient presentation of the claim to the executor or administrator. Without this exact or substantial written indorsement by the clerk there is no proper probate or allowance of the claim. This statute is mandatory, and directs the- only way in which a claim can be properly registered, probated, and allowed, and it must be at least substantially followed. In the absence of this indorsement upon the claim, it is absolutely lifeless. It is no presentation of the same to the executor or the administrator for payment. Neither the executor nor the administrator would have a right to pay any unindorsed claim against the estate. It is the duty of the creditor, not only to properly itemize his claim and make the proper affidavit thereto, but also to see that the clerk makes the proper indorsement on the claim. Otherwise the creditor has failed to properly protect his claim. If the clerk intended to approve and allow this claim, he could and should have done so within one year. If the court was of the opinion that the clerk actually intended to approve and allow this claim, then the court had the power, within one year before this claim was barred by tbe statute of limitations under section 2106, to enter an order, authorizing tbe clerk to approve and allow tbe claim under tbe statute. When, however, tbe one-year statute of limitations has run, tbe court and tbe clerk are both absolutely powerless to breathe tbe breath of life into a lifeless thing. Under our law there is no such thing as an oral approval and allowance of a claim against tbe estate of a decedent. The only competent evidence of its probate and allowance is tbe written indorsement of tbe clerk. Tbe oral allowance or approval of the clerk set out in tbe cross-petition of tbe appellee is no more and no less than an unexecuted intention of tbe clerk to approve and allow tbe claim. Tbe claim was never in fact legally approved and allowed by tbe clerk. Therefore tbe order of tbe court could in no wise give any life or vitality to this claim. “A nunc pro tunc entry in practice is an entry made now of something which was actually previously done, to have effect as of tbe former date. Its office is not to supply omitted action by tbe court, but to supply an omission in tbe record of action really bad, but omitted through inadvertence or mistake. 12 Amer. & Eng. Ene. Law, p. 84 et seq., and authorities cited; Chissom v. Barbour, 100 Ind. 1.” Perkins v. Hayward, 132 Ind. 95, 31 N. E. 670.

In tbe case of Lehman v. George, 99 Miss. 798, 56 So. 167, this court, speaking through Justice Smith, held as follows:

“Where a claim is not probated against tbe estate of a decedent as required by law, its registration does not stop tbe running of tbe statute of limitations, and after tbe bar of tbe statute of limitations has attached tbe probate cannot be amended.”

Tbe purpose of tbe cross-appeal in this case is but to amend tbe attempted probate and allowance of this claim. In tbe same case this court, addressing itsqlf further to tbe one-year statute of limitations, has tbe following to say:

“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, of course, 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.”

It is strenuously insisted by counsel for appellee that the creditor in this case did everything within his power to follow the statute, and that the failure to comply with the statute is due to the ignorance of the clerk, and that the creditor should not be made to suffer on account of the clerk’s ignorance. The scheme, however, of our administration laws is that the creditor must not only comply with the statute himself, but the further duty devolves upon him to see that the clerk approves and allows his claim by proper indorsement within one year; otherwise his claim is barred.

Reversed, and decree here for appellant.

Reversed.