Hooks v. Martin , 1921 Tex. App. LEXIS 60 ( 1921 )

Appellant presented to appellee, F. S. Martin, as administrator of the estate of G. D. Martin deceased, a claim in the sum of $145.70. The affidavit attached to this claim was fatally defective. Appellee refused to allow it, without giving any reason for its rejection. Later, appellants again presented the claim to appellee properly verified. Again he rejected it. After more than 90 days from the date of the first rejection, appellants filed suit on their claim in the justice court. The judgment was against them. They appealed to the county court, where judgment was again against them. They have brought the case here from this last judgment

From the conclusions of law and fact filed by the trial court, it appears that he based his judgment on two grounds of limitation: First that the claim was barred because suit was not filed within 90 days after the first rejection; and, second, that It was barred before the death of G. D. Martin, under the statute of two-year limitation. He was wrong in both conclusions. The rejection of the claim not verified, as required by law, did not set in motion the statute of 90 days' limitation. Crosby v. McWillie, 11 Tex. 94; Gillmore v. Dunston,35 Tex. 436; Walters v. Prestidge, 30 Tex. 65; Lanier v. Taylor, 41 S.W. 516; Gaston v. McKnight, 43 Tex. 619; Henry v. Roe, 83 Tex. 446,18 S.W. 806; Whitmire v. Powell, 117 S.W. 438.

The trial court based its conclusions of law that the claim was barred before the death of G. D. Martin on the theory that the burden rested on appellants to show that their claim was not barred. This was error. The burden rested on appellee to plead and prove that the claim was barred. Vinson v. Whitfield, 133 S.W. 1095; Jackson v. Stone, 155 S.W. 960.

For the errors discussed this cause is reversed and remanded for a new trial.