Miller v. Janney's Ex'r

Ryland, J., delivered the opinion of the court. The question for us to decide in this case, relates to the action of the probate court, in refusing to alter its judgment, and re-class the plaintiff’s demand, so as to place it in the fifth instead of the sixth class of claims. [268] The probate court refused the motion of the plaintiff, for this purpose: he applied to the circuit court, which reversed the judgment of the probate court, and ordered the claim to be classed in the fifth class, by the probate court. The executor brings the case before us, from this judgment of the circuit court. From the facts contained in the record, we have no hesitation in saying, that the probate court could not have legally classed the demand, from the state of the facts before that court, in any other than the sixth class of claims. The probate court, having classed the demand in the 6th class, as the case stood at the time of the judgment and classification, it was the duty of the claimant, if he had any evidence upon which the court should have placed the claim in a different class, to have produced it when the demand was allowed; so that the probate court might have examined such evidence and declared its effect. To change the class, is to change the force of the judgment, as to all creditors in the prior class, which should not be done, but upon such' facts, only, as would authorize the court to set aside or modify its judgment in other particulars. The fact, that the claimant had evidence of the prior presentation of the demand to the executor, which he neglected to offer the probate court, at the time the demand was allowed and classed, does not authorize the court to change the class afterwards. The report of claims, by the executor, is not the evidence upon which the claimant is to rely, as it is not made for the purpose of classifying demands. The circuit court, therefore, erred in its judgment, directing the probate court to class this demand in the fifth class. Its judgment is therefore, with the concurrence of the other judges, reversed.