Superior Oil & Gas Co. v. Sudbury

McCulloch, C. J.

Appellant instituted this action in the circuit court of Mississippi County a,gainst the estate of J. G-. Sudbury, deceased, to recover the sum of one thousand dollars, alleged to be due on a stock subscription made by said decedent. The complaint was amended by interlineation so as to allege that said decedent executed and delivered to appellant a promissory note for said stock subscription and that the note had been lost, without having been paid. Besides other defenses, the executrix of decedent’s estate pleaded the statute of nonclaim. Kirby’s Digest, § 110, as amended by act of May 28, 1907. There was a trial before a jury and upon the issues submitted by the court in its instructions, a verdict was returned in favor of appellee.

There are several assignments of error, bnt we think that the evidence fails wholly to show compliance with the statute in regard to presentation of claims against estates of deceased persons. The statute provides that the authentication of such a claim made by a. corporation must be made by the cashier or treasurer of the corporation (Kirby’s Digest, § 116) and that the affiant shall state that “he has made diligent inquiry and examination, and that he does verily believe that nothing has been paid except the amount credited, and that the sum demanded is justly due.” Kirby’s Digest, § 117.

There is in the record a writing which was exhibited with the complaint and introduced in evidence as an affidavit authenticating the claim of appellant, hut it does not meet the requirements of the statute. Appellant is a corporation, and the affidavit purports to have been made by the secretary. That is not sufficient. Lanigan v. North, 69 Ark. 62. Moreover, the affidavit is unsigned, and there is no jurat, of an officer attached to it. In fact it is no affidavit at all, nor do the contents of the writing meet the requirements of the statute. The complaint was not verified by affidavit.

Affirmed.