Opinion
No. 31826.
October 21, 1935.
APPEAL AND ERROR.
Order which adjudged that claimant failed to file itemized statement of claim against decedent's estate, and that court desired to be further advised as to whether statement filed was within statute, and which gave claimant leave to file copies of original invoices for court's examination on such point was not "final decree" from which appeal would lie, but was "interlocutory order," appeal from which would be dismissed where no order was entered allowing appeal (Code 1930, sections 14, 1671).
APPEAL from chancery court of Harrison county.
HON. D.M. RUSSELL, Chancellor.
Proceeding by the International Shoe Company to establish a claim against the estate of John A. Lozes, deceased, opposed by Frank P. Wittman, administrator, and others. From an order, the claimant appeals. Appeal dismissed.
Chambers Trenholm, of Jackson, for appellant.
This court has held that a creditor might amend its claim in any manner during the six months' period, for he could withdraw it and file a new one.
Bell v. U. P. Bank Trust Co., 158 Miss. 486, 130 So. 486.
That being true, and the creditor having been lulled into a sense of security not only by the fact that no objections had been filed, but by the direct statement of the administrator that its claim would shortly be paid for the amount probated, it should be entitled, as a simple matter of justice and equity, to amend in any manner, on objections being filed after the six months expired.
Sec. 1672, Code of 1930.
A substantial and not a literal compliance with the statute is required.
Bankston v. Coppwood, 99 Miss. 511, 55 So. 48.
The ground of objection was not sufficient, and should have been striken out, as asked; or, under the motion the overruling of which is complained of in the third assignment of error, the objectors should have been required to make this ground of objection more specific.
Thigpen v. Railroad, 32 Miss. 357; Griffith's Mississippi Chancery Practice, sec. 82, par. 83.
An examination of the account, we submit, will make it amply apparent that it sets forth in great detail a specific description of every item.
Hulme v. Mercantile, 149 S.W. 781.
A copy of the account, item by item, with the prices of each item, was filed, with the necessary affidavit, as the basis of the claim.
Soria v. The Planters' Bank, 3 How. 46; Fink v. Brewer, 133 Miss. 9, 96 So. 402.
It may be contended that said order was not final. However, when it is admitted that the account must be properly itemized, and it is objected to on the ground that it was not, and the court entered an order holding it was not, that was in fact if not in form a final order. We could proceed no further in that court. As long as that order stood there, the claim could not be allowed. It would be idle to say that there should have been an express rejection or disallowance. The finding that it was not properly itemized was a rejection of the claim. From that rejection we most certainly had a right of appeal.
Jacobs v. Insurance Co., 71 Miss. 656, 15 So. 639; Dickerson v. Telegraph Co., 111 Miss. 264, 71 So. 385. George R. Smith, of Pass Christian, for appellees.
The person who contracted the alleged obligation cannot present his side of the controversy and for this reason the law has made the wise provision that he who seeks to charge the estate of a deceased person with an obligation must give proof of the validity of his claim in the manner provided by statute.
Our statute, section 1671, Code of 1930, is quite clear in this regard, providing that, "Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if, any, or, if the claim be a judgment or decree, a duly certified copy thereof, or, if there be no written evidence thereof an itemized account or statement of the claim in writing signed by the creditor," and this court has consistently followed the rule that the requirements of this statute are mandatory.
Levi v. Merchants' Bank Trust Co., 86 So. 807.
Statements of an administrator will not estop the heirs nor bar the contest of a claim.
Nagle v. Ball, 71 Miss. 330.
It was incumbent upon appellant when the hearing was had upon the contest to prove his claim, the existence of an indebtedness, the liability of the estate therefor and the amount due and failing so to do it has no record upon which to base an appeal from the ruling of the court below.
King et al. v. Staudd's Estate, 149 Miss. 222, 115 So. 427; Union Planters' Bank Trust Co. v. Rylee, 130 Miss. 892, 94 So. 796; North, Admr., v. Lowe, 63 Miss. 31.
The claims of creditors registered against his estate shall be strictly construed against the creditors.
Jennings v. Lowery Berry, 147 Miss. 673, 112 So. 692.
This is an appeal from an order of the chancery court of Harrison county, entered upon the hearing of a contest of the probate claim of appellant against the estate of John A. Lozes, deceased, the question involved being whether or not the said claim was itemized as required by statute, section 1671, Code of 1930.
John A. Lozes died intestate, and, after the publication of the administrator's notice to creditors to probate their claims, the appellant filed its account against the said estate for the sum of six hundred fifty-eight dollars and thirty-eight cents, with the statutory form of affidavit attached, executed by its treasurer, and the account was probated, allowed, and registered by the clerk.
After the time allowed for probating claims had expired, both the administrator, and the minor heirs at law of the deceased by their guardian, filed objections to the said claim of appellant. The original objections filed by the administrator raised questions of law only, one of the objections being that the claimant failed and neglected to file an itemized account or statement of his claim, as required by statute. The objections filed by the guardian of the minor heirs were the same, with the additional ground that, "said estate is not indebted to the claimant, nor was said decedent indebted to such claimant, in the manner and form alleged by the claimant;" and by amendment allowed by the court, the last above-stated ground of objection was added to the objections of the administrator.
Upon motion of the contestants, the several objections were consolidated, and upon the hearing of the consolidated contest, motions by the appellant to be allowed to amend its probated claim and to strike out and to make more specific the ground of objection above quoted, and which was added to the administrator's objections by amendment, were overruled; and the court entered a decree reciting: "The court further adjudges that the claimant, Friedman-Shelby of International Shoe Company, has failed to file an itemized statement of its aforesaid claim as required by the statute, and that as to the paper of writing filed herein as a statement of said claim the court desires to be further advised as to whether statement is within the meaning of the statute; and that said claimant be and it is hereby granted leave to file herein copies of the original invoices representing the goods alleged to have been sold to the deceased John A. Lozes, for the court's examination on the point."
No further order in the matter was made, and before the expiration of the time allowed for an appeal from the aforesaid decree, the claimant perfected this appeal.
In our opinion the decree appealed from is not a final decree from which an appeal will lie. It is clearly interlocutory and the record discloses no order of the court or chancellor allowing an appeal therefrom, as provided for in Code 1930, section 14. Consequently, the appeal is dismissed, and the cause remanded.
Appeal dismissed.