Union Savings Ass'n v. Somers

166 N.W. 638, 40 S.D. 177, 1918 S.D. LEXIS 43

• Court: South Dakota Supreme Court
• Decided: March 8, 1918
• Docket: File No. 4272
• Status: Published

Opinion

McCOY, J.

The plaintiff, who is 'appellant in this court, hladl a claim flor a sum of money against tine estate of Berglund, dleciea's'eld, which, in dbe form wa© presented Itio the defendant, respondent, as 'administrator of said estate, for allowance, and which claim was, by said administrator, and also, by the county judge, .rejected on the ground that tine same was ntot filed in time. Action on sa'ildl claim was Ithter'eaifter instituted1 in the circuit Count, and thereafter an agireeid1 statement of facts was made by thie parties, and thereafter, upon such agreed statement, the court rendered judgment in favor of defendant on the ground that plaintiff si claim 'had nlot been filed in time and was therefore Hamred) by the statute. From said' judgment plaintiff appeals.

From the agreed facts it appears that said Berghtind died on) the 1st day of' August, 1916; that 0111 the 31st day of August next following respondent was appointed administrator, and upon said díate qualified' as such; and alsioi on the same date, August 31st, the judge of tine count}'' court made and signed an order dated on' that -dlay directing the said administrator tio give notice to creditors to present their claims against said deceased to. the said administrator within four months1 'after the first publication of said ¿lotice, Ae said order alslol requiring said notice' to' be published ini a certain,' specified newspaper once each we'ek far four successive weeks. It afclo appears thait soild notice to1 creditors was published! for four successive weeks in said newspaper, Ae first publication being on August 31, 1916, the second on, September 7th, Ae third oni September 14th, and) the last on September 21st, and that these w’ere the only 'publidatiionis' of said notice. It also 'appears that the order appointing the defendant aidiminisitraltolr, the letters of adimnisitration, and the order for publication of notice to creditor's’, were not any of them entered or filed wlilth -the clerk of said eloiurt until’ September 1, 1916; that on the 7th dla,y of March, 1917, the 'appellant presented its claim for the balance due of $488.90 on a certain n'ote made, executed, 'and delivered 'by said Berglund, deceased, and- which claim was on the 8th day of March rejected) both by the administrator and the count)» judge on the ground -that the time for filing claims against said estate bad expired on December 31, 1916.

[1, 2] It 'iisi the contention of appellant that no valid or binding publicationi of notice to creditors to present claims 'had ever been made prior to 'the filing of its said claim; 'that, by reason of the fact that the oirdler made by the county court directing publication of such notice was niclt fifed at the time ¡the first publication was made on/ August 31st, such publication so made on that day was void /and of nlo effect; and that but three valid/ publications were ever madle of said notice te» creditors. We are of the opinion that appellant is /right in tbisi contention. While there is no provision in 'the Probate Code of this state specifically requiring such ondiers for publication of notice to- creditors to bel filed', yet section 12 of the Probate Code, as amended' by chapter 164, Laws of 1913, provides that the process, pleadings, practice, and modes of procedure in the county courts shall! be the slame as provided) for in the circuit court's by the Code of Civil Pn> cedure. Section 317 of the Code of Civil Procedure provides that an order becomes complete and effective as such when made in writing, signed by thie count or judge, attested by the clerk, and filed in bis office. The reason for the rule requiring that an order be entered of record in some form, before it becomes effectual .as an order is that there shall be no uncertainty as to) the existence ainid exact purport of such order, and that there be some reliable -and1 available mean's of determining its existence and purport. An order, under Our statute as it exists at this time, i's deemed to be entered when formally prepared'., signed by the court or judge, attested by tine clerk, and1 filed in his office. Until all these things have been done it is nio-t an effective order. Prior to 'statehood and prior to' the enactment of chapters 78 and 81, Laws of 1890, a probate count had no clerk; but all orders were then nualde by the judge of that court, and entered and! signed by him in the minutes of the court. A new system of procedure and! practice in relation to. county courts, which succeeded and took the place of the prior territorial probate courts, came into existence by the1 adoption of our Constitution, aincl the enactment of said chapters 78 and 8r, whereby the County court among other jurisdictions became possessed of probate jurisdiction, with a clerk, and also whereby the practice and .procedure of counity Courts were made to conform to that of circuit courts as far as practicable. With the ¡advent of this new system the old rule requiring the judge of the probate court toi ¡enter and sign ¡cinders on the minutes of the court became obsolete anld nlo longer applicable to orders made by the county court. We are of the view therefore that the order made by the County court on the 31st ‘day of August was wholly ineffectual for any purpiclsie .as am order, prior to the 1st day of September at the time of its filing, add that the publication of said notice on the 31st day of August was> of no force and effect whatsoever. On August 31st, in law, there was no order for publication'. It 'therefore necessarily fallows that no legal publication of notice to creditors to present claims had ever been miald'e prior to the time appellant presented its claim for allowance. Stephens v. Faus, 20 S. D. 367, 106 N. W. 56; Wise v. Williams, 88 Cal. 30, 25 Pac. 1064.

The judgment and ¡order appealed from are -reversed.