BETTY MORGAN DAVEY, as Administratrix of the Estate of JACK C. DAVEY, Deceased, Appellant and Cross-Appellee,
HAROLD J. JANSON, Appellee and Cross-Appellant
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge.
Mr. Thomas W. Glenn and Mr. J. B. Sumter, for Appellant and Cross-Appellee.
Messrs. Cox & Ollerton, and Mr. Frank Hotchkiss, for Appellee and Cross-Appellant.
Stanford, J. McAlister, Chief Justice (specially concurring). Ross, Judge (dissenting).
[62 Ariz. 40] Jack C. Davey died in Maricopa County, Arizona, on November 24, 1940. Plaintiff, now the appellee, brought his action against the personal representative of the estate of deceased to recover $ 3,175 for legal services rendered deceased in his business affairs and for services rendered the Wallapai Brick Company in its business affairs, extending over the period of time from December 15, 1933, to and including the eleventh month of the year 1940.
The case was heard before the court without a jury, and the appellee recovered judgment in the sum of $ 800. Appellant herein has appealed from such judgment and the appellee has cross-appealed, claiming he should have judgment for the full amount of his claim.
Letters of administration were issued to the defendant on December 11, 1940. Notice to creditors was first published on December 13, 1940, and the time therein fixed for persons having claims against the estate to exhibit them, with the necessary vouchers, was ten months after the first publication, the estate exceeding in value the sum of $ 5,000. Section 38-1001, Arizona Code Annotated 1939.
[62 Ariz. 41] All claims arising upon contracts must be presented within the time limited in the notice to creditors, and if not so presented are forever barred. Section 38-1003, Id.
Claims must be allowed or rejected within ten days after their presentation. Section 38-1005, Id.
If rejected, action by the holder must be brought within three months after rejection if then due, or two months after claim becomes due, or the claim "shall be forever barred." Section 38-1007, Id.
Complaint was filed on July 9, 1941. The first question is, was it filed within
three months after appellee's claim against the estate was rejected. The evidence on that point is very contradictory. That of the administratrix is to the effect that she was served with the original of the claim on March 22, 1941. This is corroborated by her attorney and his stenographer. If it was served on that date, by operation of law it was rejected ten days thereafter, or on March 31. To come within the law, the action should thereafter have been filed on June 30, 1941, but the testimony on behalf of appellee is to the effect that he served his claim on the administratrix on April 12, 1941, and not before, and this testimony is corroborated. The court decided the controverted question in favor of appellee.
This finding of fact was based on conflicting evidence and under our many rulings we will not disturb that finding.
Of the total amount of this action the trial court allowed certain claims aggregating $ 800 and those claims were itemized in the creditor's claim that was presented to the administratrix upon which this suit was brought.
The items recognized by the trial court were as follows:
[62 Ariz. 42] (1) A case in the Superior Court of Maricopa County entitled Beck v. Wallapai Brick Company. The creditor's claim filed mentioned the fact that the action was still pending and claimed there is a balance of $ 300 due as attorney's fee.
(2) Item for $ 125 for a cause of action filed in the Superior Court of Maricopa County, entitled Niagara Fire Insurance Company v. Wallapai Brick Company marked "still pending."
(3) Item for $ 125 for a case in the same court, entitled Goldwaters' Mercantile Company v. Jack C. Davey.
(4) Item for $ 50 for services rendered for an action in said court entitled Davey v. Ackers, marked "still pending."
(5) Item for $ 50 in an action in said court entitled Davey v. Wheat marked "still pending."
(6) Item for services for conference with deceased in the sum of $ 25, in July and August, 1938.
(7) And the last item was for writing the minute entries of the Wallapai Brick Company and acting as statutory agent to 1940 at $ 25 per year from 1932, the item being for $ 125.
The appellant further contends: (1) That the claim as presented was not the same claim upon which suit was brought. (2) That in reference to items of the claim numbered 1, 2 and 7 the claim is based upon a promise of deceased to pay the debt of the Wallapai Brick Company and is not in writing, therefore appellant invokes the defense of the statute of frauds. (3) Appellant pleads the statute of limitation as to items 4 and 5 in the claim as allowed by the trial court and as above set forth. (4) Appellant claims the item for services as statutory agent of the Wallapai Brick Company is barred by the statute of limitation. (5) Error is complained of by the trial court allowing appellee to testify to his agreement with deceased during [62 Ariz. 43] his lifetime. (6) That the appellee failed to prove a prima facie case as to any one of the above named items.
In reference to the contention that this action was brought on grounds not set forth in the creditor's claim, or in other words, that the special oral agreement plead in the amended complaint was not made known to appellant through the claim presented, appellant cites many cases, among them being, Estate of Sullenberger, 1887, 72 Cal. 549, 14 P. 513; Lichtenberg v. McGlynn, 1894, 105 Cal. 45, 38 P. 541; Barthe v. Rogers, 1899, 127 Cal. 52, 59 P. 310; McGrath v. Carroll, 1895, 110 Cal. 79, 42 P. 466; Etchas v. ...