Lonkey v. Powning

By the Court, Massey, J.: On the 14th day of January, 1899, O. Lonkey filed his claim against the estate of C. C. Powning, deceased. The claim was based upon a note executed by the decedent in his lifetime, the original being attached to the statement of the claim and the affidavit in support thereof. Oh the 10th day of February, 1899, the administratrix rejected said claim, for the reason that the affidavit thereto attached failed to comply with the requirements of the statute. It is not necessary to note the defects in the affidavit. Thereafter, on the 20th day of February, 1899, the administratrix notified the claimant of the rejection of the claim, and on the 17th day of March, 1899, Lonkey instituted suit in the district court upon said claim. On the 3d day of June, 1899, upon notice to the administratrix to that effect, the claimant made application to the district court for leave to amend the affidavit, which application was by the order of the court refused. This appeal is from the order refusing claimant’s motion to amend. The administratrix contends that an appeal will not lie from this order, and asks us for an order of dismissal. The claimant contends that the order comes within the provisions of section 255 (Comp. L. 1900, sec. 3041) of the act to regulate the settlement of estates of deceased persons, and should be treated as an appeal from a final judgment in an action at law. The- question, as far as we have heen able to ascertain after a careful search, is new and must be determined by the provisions of the above act. The section prescribing the form of the affidavit to be attached to the claim authorizes the district court in its discretion, for good cause, upon application made at any time before the filing of a final account, to allow a defective affidavit to be corrected or amended. (Comp. L. 1900, sec. 2894.) It cannot be doubted that there should be some procedure by which the abuse of the discretion reposed in the court should be reviewed and corrected;' otherwise, as it is urged *431 under the decision of the Supreme Court of California, the defect in the affidavit would operate to defeat the right to recover in the action upon the rejected claim. It is not necessary, as we think, to anticipate what should be the rule as to the effect of a defective affidavit upon the claimant’s right to recover under our statute, nor is it necessary to discuss the California case cited, as the determination of these questions of procedure by all the courts is, of necessity, based upon the language, to a very great extent, used in the particular statute to be construed. The rejection of a claim by the administratrix under our statute, for any reason, is not a final determination of the rights of the claimant; he may, under the statute, institute a suit thereon in which there are adverse partiés, and, under the statutory rules, reserve all questions affecting his rights for review in the appellate court. It seems to us, as necessarily arising from the provisions of our act, that the claimant, having made his application to the court for leave to amend, may, in making his proofs in the action upon the rejected claim, reserve any question growing out of the abuse of the court of its discretion in this matter. The appeal will, therefore, be dismissed.