Jones v. Estate of Keep

Cole, J. This case must turn upon the answer to be given the question, Was the circuit court right in holding that the presentation of the notes to the commissioners was not the continuance of the suit pending in the circuit court at the time Judge Keep died, nor a revivor .of that suit, but was the prosecution of a new remedy or proceeding given by the statute to recover the amount of the notes? If such presentation of the notes to the-commissioners was a new and independent action, then the conclusion would seem inevitable, that the commissioners properly disallowed the claims, because barred by the [49] statute of limitations. Section 9, chap. 101, R. S., provides, •that no claim “ barred by tbe statute of /limitations shall be allowed by the commissioners in favor of or against the estate.” The notes in this case were joint and several, given by Judge Keep and the other makers, payable January 3, 1855. The plaintiffs commenced suit upon the notes in the circuit court of Rock county, December 20, 1860. Judge Keep was upon that day served with process, and appeared and answered ■ in the action. March 2, 1861, he died testate, and on May 7th, thereafter, the will was proven, up, and letters testamentary issued to the executor. Commissioners were appointed to receive, examine and adjust claims against the estate. Eighteen months were fixed by the first order for that purpose, which time was afterward extended to November 22, 1862. October 7, 1862, the plaintiffs presented the notes to one of the commissioners, and at their meeting October 22, 1862, he presented them to the board, when they were disallowed. It will be observed from this statement of facts, that the notes would have been outlawed when Judge Keep died, but for the fact that an action had been commenced on them in the circuit court. And it is claimed, that it is the necessary operation and effect of the various provisions of our statute, to transfer this suit to the commissioners for trial, otherwise the plaintiffs would have no remedy. For it is said, the action could no longer be prosecuted in the circuit court, but the plaintiffs were compelled to go before the commissioners with their claim; and to hold, when they got there, that their application stands upon the footing of an independent suit as of that date, is equivalent to destroying- a cause of action perfect against Judge Keep at the time of his death. We think this an erroneous view of the matter. At common law, in case of a several contract, or one joint and several, if one of the parties die, the executor of the deceased might he sued at law in a [50] separate action. 1 Chitty’s Plead. 59; Union Bank v. Mott, 27 N. Y. 633, and Gardner v. Walker, 22 How. Pr. R. 405. In the case of the Union Bank v. Mott, Mr. Justice SeldeN says: “ Where parties are jointly and severally liable, either for torts or npon contracts, the personal representatives of deceased parties may be proceeded against by action at the same time with actions against the surviving parties; but it must be by separate actions, and not by joining "both classes of defendants in one action; and on the decease of one of several defendants thus liable in a pending action, such action cannot be revived as a joint action against the surviving parties and the representatives of the deceased party.” He adds that he could see no objection to the revivor of the suit in such a case as against the -representatives of the deceased party as a separate action. And we suppose the same thing might be done under our. statute. Section 16, chap 101; § 1, chap. 135, R. S. But we know of no provision of the statute which transfers an action pending in the circuit court against a deceased person before commissioners for trial. And the assumption that the plaintiffs were compelled to resort to the proceeding before the commissioners, and could not have the action continued separately against the representative of Judge Keep, we do not think well founded. Nor do we consider that there is anything in § 4, chap. 135, necessarily in conflict with these views. When, therefore, the plaintiffs presented these notes to the commissioners, they sought to avail themselves of a new remedy. So far as that proceeding was concerned, the statute of limitations was a complete defense. The pendency of the action in the circuit court could not be properly considered by the commissioners. They could only ascertain and determine whether the period of limitation had run when the notes were presented to them for allowance. That it had, so far as related to that proceeding, seems to us clear. Boyce v. Foot, 19 Wis. 200. By the Court. — The judgment of the circuit court is affirmed.