Creswell v. Slack

Reed, J. Plaintiffs allege in their claim that, when the partnership of which they and the intestate were members was dissolved by his death, its business was in an unsettled state, and it was impossible to determine the exact state of the accounts, as between the partners, but that it was then known and understood that intestate was indebted to them in a large amount; and that they then filed a claim against his estate in the orphans’ court in Pennsylvania for $2,501.64, and that this amount was allowed them by that court. They also allege that, ■ upon a final settlement of the affairs of the partnership, it was ascertained that the full amount of the indebtedness to them was $13,470.31. [113] 1. estates judgment"18: pfgn'admiii’ovuience3 iifáry administrator in this state. On the trial in the circuit court, they offered in evidence a transcript of the record of the proceedings of the orphans’ court in which said claim was allowed. This record was sought to be introduced for the purpose of establishing that portion of the claim which was allowed by the Pennsylvania court. The defendants objected to this record on the . . , ground that the allowance of the claim by that court was not binding on the administrator appointed in this state, and, as against him, the record of the allowance is not competent evidence of the validity of the claim. But the objection was overruled, and, on the evidence afforded by the record of the allowance by the Pennsylvania court of that portion of plaintiffs’ claim, the same was allowed. The only question arising on defendants’ appeal is as to the correctness of this ruling. If the record of the allowance of the claim by the Pennsylvania court is competent evidence against the administrator appointed in this state, it must be upon the ground that such allowance has the force and effect of a judgment, and that the administrator stands in such relation to the parties to the proceedings that he is bound by such judgment. The judgment of a court of competent jurisdiction is binding upon the parties to the record and their privies. Conceding, then, that the allowance has the force and effect of a judgement, the question whether it is binding on the administrator depends upon whether there is any privity between him and the Pennsylvania administrator; and, in our opinion, there exists no such relation between them. The administrator appointed in this state derives his powers from the statutes of this state. ITe succeeds to none of the powers or rights of the Pennsylvania administrator. His appointment empowers him to collect such assets of the estate as may be found in this state, and he may make such disposition of them as is directed by the laws of this state; and he is not answerable for his conduct, either to the foreign administrator, or to the power from which his authority is [114] derived, but is independent of both. There is privity neither in law nor estate between them, and there is no general principle of law under which it can be held that a judgment against the one is binding upon the other. The question .is exhaustively discussed by the supreme court of the United States in Stacy v. Thrasher, 6 How., 57, and McLean v. Meek, 18 Id., 16; and it is held in each of those cases that an action will not lie upon a judgment rendered by the courts of one state against an administrator appointed in that state against an administrator appointed in another state; and to the same effect is Talmage v. Chapel, 16 Mass., 71. It is contended, however, that the contrary rule is created by section 2368 of the Code. That section provides that when administration has been granted in another state or country, the foreign administrator may upon his application, and upon qualifying as is required of other administrators, be appointed to administer upon the projierty of the deceased in this state, unless another administrator has been previously appointed in the state. In our opinion, the question considered above is in no manner affected by this statute. It provides, simply, for the appointment in this state of one who has previously been appointed to administer upon the property of the estate in the foreign jurisdiction. The administrator in this case was not appointed under that provision, and his powers and relations are in no manner limited or defined by it. We think the circuit court erred in admitting the record of the allowance in evidence, and in allowing that portion of the claim on the evidence afforded by it. 2. evidence: írffinuooks of account. II. Plaintiff offered in evidence copies, taken from the books of the firm, of the account between said Elijah T. Slack and the partnership up to the time of his death; also of the account kept by plaintiffs since qqg ¿¡eaj¿1} ci0siiig the business of the firm. Defendants objected to these copies on the ground of incom [115] petency, which objection was sustained. We think the ruling is correct. The evidence was offered for the purpose of establishing the claim. The account consisted of a great number of items, and the transactions extended through a number of years. The books in which the accounts were kept could probably have been introduced; but copies of the entries were not competent. Churchill v. Fulliam, 8 Iowa, 45; Peck v. Parchen, 52 Id., 46. In the absence of these accounts, there was no evidence to establish that portion of the claim which had not been allowed by the Pennsylvania court, and the circuit court correctly disallowed it. 3. estates of sai°eof land pay claim allowed in other state: statute of limitations. III. The circuit court refused to grant an order for the sale of the real estate, on the ground that the right of plaintiffs to have their claim satisfied by the sale of veal estate was barred by the lapse of time. The allowance of the claim by the Pennsylvania count was m April, 1871. It had been fully ascertained r ’ •' at that time that the assets in the hands of the administrator would pay but a very small per cent of the claims allowed against the estate. This proceeding was not instituted for more than four years after that. In the mean time the property had been sold and conveyed by the guardian of the children of the intestate to third parties, who purchased in ignorance of the claim. Without setting out the evidence relied on as establishing an excuse for the delay in instituting the proceeding, we deem it sufficient to say that we think the circuit court rightly held that it was insufficient for that purpose. T-he case is similiar in its facts to Hadley v. Gregory, 57 Iowa, 157, and is governed by the principle laid down in that case. The judgment will be affirmed on plaintiffs’ appeal. On defendants’ appeal it will be reversed.