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eBook details

• Title: State v. Jacobson
• Author : Supreme Court of Montana
• Release Date : January 18, 1926
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 53 KB

Description

Executors and Administrators — Claims Against Estate — Claim Lost or Mislaid in Clerks Office After Rejection — When Deemed "Filed" — Statutes of Limitation — Bills of Exceptions — When not Subject to Motion to Strike from Files. Records — What Constitutes "Filing." 1. To "file" papers in a public office is to deposit them with the proper custodian for keeping; the marking of them "Filed" not constituting the filing. Executors and Administrators — Claims Against Estate — Rejection — Purpose of Statute Requiring Filing of Rejected Claim — Statutes of Limitation. 2. One of the purposes of section 10178, Revised Codes, declaring that when a claim against an estate is rejected the claimant must bring suit against the executor or administrator within three months after the date the claim is filed, with endorsement showing its rejection, in the office of the clerk of the district court, the claim shall be barred forever, is to compel claimants promptly to seek enforcement of their claims when rejected; such a statute is a special statute of limitations. Page 43 Same — Mislaid or Lost Claim After Receipt in Clerks Office — Claim not Filed Until Found and Open to Inspection. 3. Upon rejection of a claim against an estate on September 18th it was mailed to the office of the clerk of the district court on October 21st following for filing but was apparently mislaid and not found until February 18th of the next year when it was filed. Within three months after the last mentioned date claimant brought suit. The trial court found that within contemplation of law it was filed the day after its mailing, to-wit, on October 22d and that therefore the action was barred under section 10178, supra. Held, that the court erred; that the claim was not filed until it was found by the clerk and open to inspection by whomsoever it concerned, and that therefore the action brought within three months thereafter was timely. Appeal and Error — Bills of Exceptions — When not Subject to Motion to Strike from Files Because not Served and Filed Within Time. 4. Where a party within fifteen days after entry of judgment but before his motion for new trial had been acted upon asked for an extension of time in which to prepare his bill of exceptions and subsequently filed it within that time, acting under section 9390, Revised Codes, i.e., within the time contemplated where no motion for new trial is filed, the bill was not subject to a motion to strike it from the files on the ground that it was not served or filed within fifteen days after the motion for new trial had been deemed denied for non-action thereon, or earlier than was necessary under the section. Same — Bills of Exceptions — Rule as to Where Motion for New Trial Pending. 5. The provision of section 9390, supra, that no bill of exceptions need be prepared or settled until a decision upon the motion for new trial has been rendered is permissive and may be waived; it does not prohibit an appellant from preparing a bill or getting an extension of time where a motion for new trial is pending.

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