N. L. Carpenter & Co. v. Naftel
N. L. Carpenter & Co. v. Naftel
Opinion of the Court
The presumption ordinarily arising from the mailing of the verified account to said executor, as stated, is urged as making the jury question under the authority of Pioneer S. & L. Co. v. Thompson, 115 Ala. 552, 556, 22 South. 511; Farmers’ Mut. Ins. Asso. v. Stewart, 192 Ala. 23, 26, 68 South. 254; Holmes v. Bloch, 196 Ala. 322, 326, 71 South. 670; Corley v. Vizard, 84 South. 299. 2 An examination of these four cases discloses the fact that in Thompson’s Case the presumption was of the receipt of a certificate of stock duly mailed to the husband; in Stewart’s Case the question was of delivery of a policy within the reasonable time in which the same should have been delivered; in Holmes’ Case it was the countermanding of an order transmitted by due course of mails; and in Corley’s Case receipt by mail of deeds to real property and reservation, or the lack of it, contained in the correspondence before and at the time of such delivery. When the foregoing authorities are thus understood, it is apparent that they are analogous to the question here presented. - It is for the jury to say whether the ordinary presumption arising from the mailing of the verified claim to Executor Naftel was overturned by the testimony of that executor that such presentment was never made to him, and that the verified claim was in fact never received.
“As the same statute existed in the Code of 1896 (section 133), it was construed as not applicable to claims presented personally to the representative. Peevey, Adm’x, v. F. & M. Nat. Bank, 132 Ala. 82, 31 South. 466. But the original statute was changed in the Code of 1907 by interpolating the words ‘to the executor or administrator,’ so as to extend the application of verification requirements to both methods of presentation; evidently for the purpose of meeting and overcoming the effect of the decision in the Peevey Case (February, 1902). * * * As amended by the present Code (section 2593), we see no rational escape from the conclusion that claims, as well as statements of claims, must be verified as directed by the statute, by whichever mode they may be ‘presented.’ The plain language of the law requires it, and we are bound to give it the effect intended, whatever may be the hardships inflicted in particular cases.”
Under this rule a jury question was made by the evidence as to presentation of the account of $884.38 and of the $700 note.
There is no estoppel shown by the replication sought to be pleaded against the mandatory requirements of the statute of uonclaims, and demurrer was properly sustained thereto.
It is unnecessary to discuss the provisions of section 2593 of the Code as to amendable defects In claims. On this question see Gillespie v. Campbell, 149 Ala. 193, 43 South. 28.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
Post, p. 664.
Reference
- Full Case Name
- N. L. CARPENTER & CO. v. NAFTEL Et Al.
- Cited By
- 5 cases
- Status
- Published