McName v. Malvin

Rothrock, J. I. If we understand the first ground of demurrer, it is this: That no facts are stated in the petition which would authorize a personal judgment against the defendant, and that the remedy is against the estate of the maker of the note, and not against the defendant in a personal [364] action. But this ground of demurrer assumes a fact not warranted from the averments of the petition. No personal judgment is demanded therein against the defendant. It is asked that a judgment be rendered against her as administratrix, which means simply that the demand be established as a claim against the estate. i. practice : estate ferror mgs. II. The next ground of demurrer goes to the jurisdiction of the court, and, as we understand it, the defendant claims that the demand should have been filed on the probate side of the court. But a mistake as to kind of proceedings adopted by the plaintiff is not ground for demurrer. The defendant should have moved to transfer the cause to the probate calender, if it was thought that was the proper forum. Ashlock v. Sherman, ante, 311. agamst admimstrator. III. The motion made at the succeeding term to set aside the judgment was properly overruled.. It was based for the part upon the ground that the court erred in entertaining the action, for the reason that the potion and proceedings were not based upon the statute for establishing claims against an estate, and because the claim was not filed in twelve months after the administrators gave notice of their appointment, and because it was barred by the statute oflimitations. This motion came too late. The court had jurisdiction ot the parties and of the subject-matter. What evidence it had before it does not appear. The defendant should have made her resistance to the claim before judgment. This disposition of the cause renders it unnecessary to determine, the motion filed by appellee. Affirmed.