Davenport v. Davenport , 1913 Ark. LEXIS 395 ( 1913 )

Smith, J.,

(after stating the facts). Section 114 of Kirby’s Digest is as follows:

“And the claimant shall also append to his demand an affidavit of its justice, which may be made by himself, or an agent, attorney, or other person. If made by the claimant, it shall state that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due. If made by any other person, it shall state that the affiant is acquainted with the facts sworn to, or that he has made diligent inquiry and examination, and that he verily believes nothing has been paid or delivered toward the satisfaction of the demand, except the amount credited thereon, and that the sum demanded is justly due.”

This section should be read in connection with section 113, which reads as follows:

“Any person may exhibit his claim against any estate as follows: If the demand be founded on a judgment, note or written contract, by delivering to tbe executor or administrator a copy of such instrument, with the assignment and credits thereon, if any, exhibiting the original, and if the demand be founded on an account, by delivering a copy thereof, setting forth each item distinctly and the credits thereon, if any.”

Section 119 relates also to the affidavit, and its provisions are as follows:

“If the affidavit required for authenticating claims against deceased persons be not produced in an action against an executor or administrator for a debt against the deceased, the court shall, on motion, enter a judgment of nonsuit against the plaintiff; and the affidavit must appear to have been made prior to the commencement of the action.”

It has been frequently decided by this court that “in suits against estates, either by ordinary action or before the probate court, it is necessary to produce at the trial an affidavit of the justice of the claim and of its nonpayment, made before commencement of the action, or the claimant will be nonsuited. Hayden v. Hayden, 105 Ark. 97; Ryan v. Lenon, 7 Ark. 78; State Bank v. Walker, 14 Ark. 234.”

The essential thing, the jurisdictional requirement, is the making of the affidavit and a nonsuit must be suffered when it is not made within the proper time, and the statute prescribes its form. But it is held that a substantial compliance in the matter of the form of the affidavit is sufficient. Hayden v. Hayden, supra; Eddy v. Lloyd, 90 Ark. 340; Wilkerson v. Eads, 97 Ark. 296.

Here the proper affidavit was made and was attached to a verbatim copy of the note sued on, and the jurisdictional requirement was complied with. If it be said that a literal reading of the statute provides that the affidavit be physically attached to the note itself, which we do not decide, there has been a substantial compliance with it. This question was raised and decided in the case of Wilkerson v. Eads, 97 Ark. 296, where in a suit upon a note instituted in the chancery court the only affidavit consisted in the verification of the complaint, bnt its language was such that the court held it tó be a substantial compliance with section 111 of Kirby’s Digest* although it was there expressly stated that the statute applied to actions according to the forms of the common law against estates of deceased persons, as well as to presentations in the probate court of claims against such estates. The law having been, at least, substantially complied with, the court below should not have dismissed the proceeding, and for its action in so doing the judgment is reversed and the court directed to hear the demand upon its merits.