First National Bank v. Hotchkiss

Mr. Justice Gabbert delivered the opinion of the court: The question of the general statute of limitations is not material. Under no circumstances were plaintiffs entitled to any judgment different from that [597] which the defendant offered, to confess, and they cannot complain that their action was dismissed, when they refused to accept this offer. Conceding that the order of October, 1900, substituting the administrator as defendant was valid, confessedly no steps were taken to assert or establish their claim against the Gehr estate until that time. This was considerably more than a year after the administrator had been appointed and qualified. Sec. 4780, Mills’ Stats., after classifying claims, provides that all claims not exhibited against an estate within one year from the granting of letters of administration shall be forever barred unless the creditor presenting it, after that date, shall find other property of the estate of the deceased not inventoried or accounted for by the administrator, in which case his claim shall be paid pro rata out of such subsequently discovered assets. Certain persons are exempted from the operation of this provision, but plaintiffs do not fall within these exceptions. Two methods are provided for exhibiting claims against an estate, one by filing the claim in the county court in which the administration proceedings are pending; and the other by bringing an action in the district court. — Secs. 4787-4792, Mills’ Stats. By the latter section it is provided that creditors bringing their actions in the district court within one year from the issuing of letters of administration shall stand upon the same footing-as those exhibiting them to the county court within that period. Neither of these steps was taken. No claim was presented in the county court. The fact that the action was pending against Gehr at the time of his death did not amount to an exhibition against the estate of a claim for the liability sued upon. This suit did not abate by reason of Gehr’s death, but it could not be further prosecuted against his estate or any liability on that account established against it until his legal represen [598] tative, the administrator of the estate, was substituted as a party defendant, as provided by section 15 of our Civil Code. — Morse v. Pacific Railway Co., 61 N. E. (Ill.) 104. Until this step was taken, the action commenced against G-ehr remained in abeyance— Williams v. Carr, 4 Col. App. 363 — but the administrator was not required to take notice of its pendency or defend until made a party thereto. — Symes v. Charpiot, 17 Col. App. 463; Judson v. Love, 35 Cal. 463. The fact that the code provides a suit shall not abate by the death of a defendant does not obviate the necessity of continuing it in the method the code prescribes, within the one year provided for the allowance of claims, if the plaintiff in the action desires to share in the advantage of presenting his claim within that time, for it is only by complying with the code that he elects or is permitted to continue and prosecute his action to judgment against the administrator. Hence, it follows that the claim of plaintiffs was barred except so far as they might be entitled to satisfy it out of the undiscovered assets of the estate of the deceased. It is urged that because, it was not alleged in the answer that the estate had been distributed among the heirs, the plaintiffs were not limited to a satisfaction of their claim out of after-discovered assets of the estate. The statute makes several exceptions with respect to claims not exhibited within one year, but it does not except them if the estate was not distributed at. the time the claim was presented. Its evident purpose, was to limit the payment of claims not exhibited within the year to assets which the administrator had not discovered at the time they were exhibited. — McClure v. Board of Commrs., 23 Colo. 130; Townsend v. Thompson, 24 Colo. 411; Morse v. Pacific Ry. Co., supra. [599] It is also contended by counsel for plaintiffs that the district court had no authority to limit the satisfaction of the judgment rendered to the uninventoried estate of the deceased. The McClure case, supra, is express authority for such a limitation. It is also urged by counsel for plaintiffs that the claim was a contingent one, the exact amount of which could not be ascertained until the trial of the case, as it might not be necessary to assess the stock of the deceased for the full amount of the liability imposed by the statute, or, possibly, not at all, and therefore not presentable until its amount was determined. The cause of action on the stock to establish the liability of Gehr thereon had arisen and was being prosecuted against him at the time of his death. His liability thereon was absolute.- — Zang v. Wyant, 25 Colo. 551; Morse v. Pacific Ry. Co., supra. The very question to determine in the action was the amount which each stockholder should be required to pay by virtue of the liability imposed by statute. This was not changed by Gehr’s death. The same question had to be determined in an appropriate way by establishing the claim therefor against his estate. It might be but for a part of the statutory liability, or for the whole, or, possibly, nothing; but none of these questions rendered the claim- in any sense contingent or dependent upon any other action in any other forum or by any other parties. In short, the liability of Gehr in the action instituted against him was an absolute one, and on his death, the only question to determine in prosecuting this liability against his estate was the amount thereof. It is also- asserted that counsel, by filing an answer for the defendants in the original action, including Gehr, when, as a matter of fact, the latter was dead, are in some manner estopped. That act does not affect any proposition in the case. It is evident [600] from the record that this was the result of an honest mistake, or an inadvertence. It is not claimed that plaintiffs or their connsel were thereby misled, or because of this answer, did not take steps to have the administrator substituted a party defendant at an earlier date than they did. A party cannot complain of that which does not prejudicially affect his rights. The judgment of the district court is affirmed. Affirmed. Chief Justice Campbell and Mr. Justice Htt.t. concur.