Rice v. Inskeep

By the Court, Sanderson, J.: The point that it' appears upon the face of the complaint that the action was not brought until more than three months after the rejection of the claim, is founded upon a mistake of counsel. The complaint was filed on the 14th of August, 1865. The claim was presented on the 8th day of May, 1865, but it was not rejected on that day, as counsel seem to ° suppose. On the contrary, the defendant retained the claim for more than ten days, refusing to indorse upon it either [226] his allowance or rejection. At the expiration of the ten clays, the claim became a rejected claim by operation of law and not before. (Probate Act, Sec. 132.) So the rejection was not earlier than the 18th of May, and was therefore within the three months next preceding the commencement of the action. (Probate Act, Sec. 134.) The findings, as delivered by the Court, seem to cover all the issues made by the pleadings. Such being the case, they cannot be defective within the meaning of the one hundred and eightieth section of the Practice Act, and the Court did not err in refusing to amend them. The matters which the defendant asked to have found are matters of evidence rather than verdict. They may tend to impeach the latter perhaps, but if the finding was contrary to the evidence, counsel should have moved for a new trial if he' wishes to have the evidence reviewed. The judgment, however, is not in proper form. It seems to be a personal judgment against the defendant, for the collection of which an execution is awarded. Such is not the proper form. The judgment should first ascertain the amount due and adjudge the same to be a valid claim against the estate, and then provide that the same be -paid by the defendant in the due course of administration. PTo execution can be awarded. (Probate Act, Section 140.) The judgment must be modified so as to conform to the provisions of that section; and the Court below is directed to so modify it. Mr. Justice Bhodes expressed no opinion.