Thomas' v. Thomas

Judge Crenshaw

delivered the opinion of the Court—

The 35th section of article 2, chapter 37, of the Revised Statutes, requires that: “All demands against the estate of a decedent shall be verified by the written affidavit of the claimant, or in his absence from the state, by his agent, or if dead, by his personal representative, stating that the demand is just, and has never, to his knowledge or belief, been paid, and that there is no just off-set or discount against the same, or any usury embraced therein.”

The 36th section of the same article and chapter, provides that: “If any part of the demand has been paid, or there be any just off-set or discount against the same, or any usury embraced therein, the affidavit shall state the amount of the payment or usury, when the payment was made, and when the off-set or discount was due to the best of affiant’s knowledge and belief. The verification as above shall not be held to dispense with other proof as heretofore required by law. No recovery shall be had of any such demand until such affidavit be made and filed in court.”

The Code of Practice, page 123, section 473, declares that: “No suit shall be brought against a personal representative until after a demand is made of him, accompanied with the affidavit required.”

This suit is brought by B. H.'Thomas against the executors of Redman G. Thomas for services averred to have been performed by him for the testator in his life time. No separate affidavit appears to have been made and presented to the executors, nor any demand made for payment before the commencement of the suit, as required by the provisions above quoted. But the petition, without averring any demand, avers all else required to be contained in an affidavit; and the petition is sworn to. This, according to the express provisions of the Revised Statutes and of the Code, is not a compliance therewith. But the defendants appeared and answered without making any objection for want of a previous demand, accompanied by an affidavit. When, however, the plaintiff was through his testimony, and no proof having been made of a demand and of the requisite affidavit, the defendants moved the court to instruct the jury to find for them. The court overruled this motion, and after the testimony upon both sides was closed, the defendant moved the following instruction to the jury: “That they cannot find for plaintiff, unless they find from the proof, the claim sued on had been duly certified by the affidavit of the plaintiff in writing, and a demand made before suit for the debt sued for.” This instruction the court refused to give. And the first question presented for our consideration is, whether the court erred in its refusal to instruct the jury as in case of a non-suit, and in refusing to give said instruction to the jury. We think the court committed no error in overruling both of said motions..

It was not necessary that the petition should contain any averment that a proper affidavit had been presented to the defendants, and a demand made of them for payment. The cause of action was complete, and the petition would be good without such averment. A cause of action may exist, and yet it may be necessary to take some preliminary step, before a party has a right to institute a suit. The steps required by the above recited sections of the Revised Statutes and of the Code, do not affect the merits of the action. A just demancl, in and of itself, is as meritorious without as with the preliminary steps required to be taken before the commencement of suit.

It is required that, before a non-resident shall commence a suit, he shall give bond with surety for costs ; and this requisition has never been construed as affecting the merits of an action. Whenever a nonresident has brought his suit without first having given bond with surety for costs, it has never been regarded as constituting a bar to the action, but as matter in abatement only. And, until pleas in abatement were abolished by the Code, a defendant wishing to avail himself of a failure in this respect, had either to plead it in abatement, or have the defect remedied by motion to dismiss upon failure to give bond. No motion for a non-suit, nor in bar by way of instruction to a jury, has ever been sustained for want of such bond.

1. It is too late to ask the court to dismiss a suit after plaintiff’s testimony has been heard, or to instruct the jury to find for the defendant in a suit against an administrator or executor, because the plaintiff had failed to prove a demand, and the production of the affidavit required by the 2nd article of the 37th chapter of the Revised Statutes. After plaintiff’s testimony is heard, this requisition of the ¡statute will be regarded as waived.

2. The appropriate time for calling for such evidence of demand, and the exhibition of the affidavit, is before the trial; and the mode, by affidavit of defendant that the requisitions of the statute have not been performed, and a rule upon plaintiff to show cause why the suit should not be dismissed.

Iii the present case the defendants appeared and answered to the merits of the action, making no objection for the want of affidavit and demand before suit, and we think it was too late, after the plaintiff had gone through his testimony, to raise his objection for the first time, that the plaintiff had not complied with this preliminary duty. Pie might, indeed, have made a demand, accompanied with the required affidavit, before the commencement of his suit, and not be prepared to show it on the trial; when, if objection had been made before entering upon the trial, he might have prepared himself to prove it, or asked a continuance for the purpose of getting his proof upon the subject, if he could not obtain it in time for a trial at that term. The Code does not point out when, nor in what way, objection is to be taken for a failure to make the requisite demand and affidavit, but we think the most appropriate mode is, by way of affidavit by defendants before answer, that the preliminary steps had not been observed by the plaintiff as the foundation of a motion for a rule against him to produce evidence of his compliance with the necessary pre-requisites. Upon such affidavit and rule being made, the plaintiff, if he had, in fact, made the proper demand and affidavit, should then make it manifest, or ask time to do so. And, if the demand and affidavit had not in fact been made, the suit should be dismissed without prejudice.

It is declared in the said 36th section of the Revised Statutes, that “No recovery shall be had of any such demand, (as mentioned therein,) until such affidavit be made and filed in court. But, as the affidavit, upon principle, cannot be regarded as affecting the merits of the demand sued for, a failure to require its production before answer, should be esteemed as a waiver of obj ection for the want of it. Notwithstanding the requisition of said section, defendants certainly have the right to waive it; and they should, in our opinion, be regarded as having done so, unless they . demand the production of the affidavit before their answer is filed. And, as we have already said, the most appropriate mode of insisting upon a compliance with the law in this respect, is by affidavit on the part of a defendant, that the preliminary steps had not been taken, and a motion based thereon for a rule against the plaintiff. Whether such steps had been taken or not, is a matter in the knowledge of the defendant, and it is not requiring too much of him to demand from him an affidavit that the plaintiff had not performed the requisitions above quoted before the commencement of his suit.

3. The defendant asked the court to instruct the jury “that if they believed from the evidence that plaintiff and testator in his life time had a settlement in January, 1851, and in pursuance of said settlement a note was executed by defendant’s intestate to plaintiff, and accepted by him, such settlement is a circu m s t a n c e from which they may presume that the demands were settled between the parties up to the time of said^settlement.’ Thg court refused to give the instruction, but appended to it the words: “provided they find from the proof that the debt sued for was included in said settlement.” Held — that this modific at ion was misleading —it implying that other proof beside the settlement itself •was neccessary to authorize the jury to find that the demand sued for was included in the settlement.

In this case, however, the allegations of the petition contain all that is required in an affidavit by the Revised Statutes. The petition is sworn to, and this was a substantial compliance with these requisitions, though not with the requisitions of the Code.

But we think the court erred in the qualification given to instruction No. 3, asked by the defendant. This instruction, in our opinion, was right as asked; and the qualification, if it does not neutralize it, was certainly misleading. The instruction as asked is, in substance, that from the settlement alluded to, the jury might infer that the present demand had been included therein; and the qualification seems to require of the jury to believe from other proof that this demand had,in fact,been included, before they would have any right to draw the inference from the facts hypothecated, that the demand had been adjusted in that settlement. The court also erred, as we think, in submitting to the jury the question whether the payment for the services of the plaintiff was to be made annually, or only at their termination. This was a question of law, and should have been decided by the court. In our opinion, the fair construction of the agreement as averred, is, that the services were to be paid for annually. It was certainly not the understanding of the parties to the alleged agreement, that the plaintiff should go on, it might be for twenty years, or even more, and he to get ho remuneration in the meantime.

4. It is error for the court to refer questions of law to the jury, when it is asked, to instruct on the question.

Wherefore, the judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with this opinion.