OPINION ON REHEARING Respondent has filed a petition for rehearing on the *Page 456 ground that our opinion (supra, 196 P.2d 361) shows that the court failed to give consideration to the facts with reference to respondent's contention that appellant's claim was not filed or exhibited within the time limited in the notice to creditors. § 6-1603, C.S. 1945. That time under the statute, before it was amended in 1943, was ten months after the first publication of the notice. § 88-3101, R.S. 1931.
The contention was rejected without discussion (196 P.2d, at 363) because we thought the court had ruled against respondent on that point in a former appeal in the same case, Roberts v. Roberts, 62 Wyo. 77, 162 P.2d 117. The former appeal was from a judgment against plaintiff (appellant) after a demurrer to her petition had been sustained. The petition contained no allegation in regard to the publication of notice to creditors, and there was no comment on that subject in the court's opinion holding that the demurrer should have been overruled. Respondent argues, therefore, that the decision on the former appeal cannot be accepted as a ruling against him on the contention that appellant's claim for wages was not filed or exhibited within ten months after the first publication of the notice. After the case was remanded, following the decision on the former appeal, respondent (defendant) in his answer alleged, and at the trial proved, that the notice to creditors was duly published, and that the first publication was on June 28, 1940. It thus appeared that the time for filing or exhibiting claims expired April 28, 1941.
The other relevant facts in regard to the filing or exhibiting of the claim for wages appeared from the record before the court on the former appeal. The claim was filed April 22, 1941, while the appellant was administratrix of the estate, believing and claiming that she was the widow of the intestate. It was for "work, *Page 457 labor and services performed from February 18, 1927 to June 23, 1940, less six months each during winter of 1933 and 1934 and winter of 1935 and 1936, at a reasonable sum per month of $50 per month. Total 12 years and 4 months, $7400." In August, 1942, appellant waived the claim for reasons set forth, 162 P.2d, at page 118 and 196 P.2d, at page 363. In August, 1943, after it had been decided that she was not the widow of the intestate, and respondent had been appointed administrator to succeed her, she filed a so-called amendment of the claim (162 P.2d, at page 119) which made no change in regard to the performance or value of the services, but recited the facts from which the court held (162 P.2d, at page 121) that the claim, first presented as a claim of the administratrix as a creditor of decedent, had become an ordinary creditor's claim presentable to the new administrator. We cannot agree that the decision on that point would or should have been different if the record had disclosed that the time for filing claims, as limited by the notice to creditors, expired six days after the claim was filed. We think the court held that there was but one claim which, after it became the claim of an ordinary creditor, was not barred by the transactions preceding its presentation in August, 1943.
Rehearing denied. *Page 458