Citation Numbers: 121 Me. 77
Judges: Cornish, Deasy, Dunn, Hanson, Morrill, Spear
Filed Date: 12/24/1921
Status: Precedential
Modified Date: 1/12/2023
This was an action of assumpsit returnable to the Superior Court for the County of Cumberland at the December term,
1. That by filing the proof of claim in the Probate Court before action brought, and'citing the administrator to settle his final account, the plaintiff did present her claim to the Commissioners of Insolvency, and made her election under the statute, and that the pending action was thereby discontinued without costs.
2. That the plaintiff is guilty of laches in allowing the pending action to slumber from June, 1917, until February, 1921.
As to the first contention: The action had been in court several months before the decree of insolvency. The case remained in court thereafter until' the April term, 1921, at which term the motion mentioned was filed. In support of the first reason, the defendant quotes B,. S., Chap. 71, Sec. 5, which provides that “Any claim filed in the Registry of Probate supported by affidavit as provided in Section 14 of chapter 92 shall be considered as if presented to said Commissioners (referring to the Commissioners of Insolvency) provided the same is so filed before the expiration of the six months period named in the preceding section.”
But this section does not authorize the use he would make of it, nor does it have the effect in any manner to control a plaintiff in a suit brought after filing in Probate Court a claim against an estate as provided in Sec. 14 of Chap. 92, R. S., if he desires to continue his suit thereunder. Neally v. Segar, 57 Maine, 563, cited by defendant,
The plaintiff’s right to “continue, try, and have judgment” is the same under Chap. 71, Sec. 19, of the R. S. of 1916, which provides as follows: “Actions pending on claims not preferred when a decree of insolvency is made may be discontinued without costs; or continued, tried and judgment rendered with the effect, and satisfied in the manner provided in cases of appeal. No action can be commenced, except on-a preferred claim, after such decree.”
In Shurtleff v. Bedlon, 109 Maine, 62, this court in considering the foregoing section, among other conclusions held, that “No action, except the action for money had and recieved by way of appeal, can be commenced upon any unpreferred claim after the decree of Probate Court adjudging the estate insolvent, and appointing commissioners, but an action commenced before such decree may be further maintained, provided plaintiff does not present the claim declared upon to the commissioners.
As to the claim of laches on the part of the plaintiff, it may be said that from the information to be gathered from the exceptions, it does not appear that delay was due to the fault of the plaintiff alone. If there was delay beyond the usual time necessary in such cases, the defendant from the record was a party to the same. The ruling of the presiding Justice was correct.
Exceptions overruled.