Lockard v. Ware
Lockard v. Ware
Opinion of the Court
delivered the opinion of the court.
The defendant in error (hereafter called the plaintiff) brought this action as conservator, and administrator de bonis non of the estate of B. S. Hinds, deceased, to recover from the plaintiff in error (hereafter called the defendant) $200, with interest, upon a promissory note executed and • delivered by the defendant to the deceased during his lifetime. Judgment was in favor of the plaintiff ffor $248, the face of the note with interest.
The record discloses, that upon September 23, 1912, the plaintiff was appointed conservator of the estate of Mr. Hinds; that he continued to act in that capacity until Mr. Hind’s death, October .8, 1912, and may have pretended to act in that capacity thereafter, but on November 22, 1912, he was appointed administrator de bonis non-oi tYva Hinds’ estate. Considerable argument is presented concerning his authority, in January, 1913, to bring this action in the dual capacity of conservator and administrator, but as the case was disposed of on its merits and the issue being whether the defendant was owing to the estate the amount of the note, we think it unnecessary to go into the question. He was in possession of the note after he was appointed administrator, and it is immaterial to the defendant when he ceased to hold it as conservator.
The defendant admits the execution of the note but alleges payment account of services rendered as a physician to the deceased during his lifetime. This latter was denied.
The defendant’s contention that the statute of non-claim cannot be invoked to defeat a setoff or counterclaim of a debtor against an estate, where the action is brought against him by the administrator, appears to have been accepted as the correct rule by the trial court in its admission of the testimony, and by its instructions to the jury, for which reason it is unnecessary to consider the court’s ruling in allowing it to be made an issue in the pleadings.
The serious controversy is over whether the evidence is sufficient to support the findings. There is testimony upon'behalf of the defendant that, eliminating certain credits, including the note sued on, at the time of his death, the deceased was- owing the defendant $413 for professional services as his physician, and surgeon. This was shown by the testimony of the defendant’s wife, to the effect that she kept his book of original entry, which was in her handwriting; that it was correct, and that the most of the services charged for were, to her personal knowledge, rendered by the defendant to the deceased. This book of original entry was admitted in evidence. Her testimony is corroborated, in part, by that of a Mr. Dennis, who was employed as an attendant to Mr. Hinds, and testified that to his personal knowledge the defendant was repeatedly called to the house of Mr. Hinds as his physician, to which calls he responded, and performed services in that capacity, and that at times Mr. Hinds went to defendant’s office where he was treated by the defendant, some times as often as two or three times a day. The testimony of a Mr. Railey is, that, to his personal knowledge, the defendant had rendered services as a physician to the deceased. The testimony of Dr. Crook is that the fees charged, as shown by the defendant’s books, are the regular schedule of fees charged by reputable
The plaintiff contends that the book account, or certain pages thereof, admitted in evidence, was mutilated, and that the statement furnished the plaintiff as conservator, as well as the claim filed in the County Court by the defendant, and the mutilation of the defendant’s book of original
The defendant having made a prima facie defense by competent testimony, the burden was upon the plaintiff to, in some manner, challenge it. The nearest he came to doing so was by the statement, purported to have been rendered by the defendant, and when left standing unexplained, it was in conflict with a part of his position at the trial; but as stated, if it is accepted as true and as impeaching that part of the testimony pertaining to the amount owing for professional services, it would not justify the finding of the jury.
The judgment will be reversed.
Reversed.
Chief Justice Gabbert and Mr. Justice Teller concur.
Reference
- Full Case Name
- Lockard v. Ware, Conservator
- Status
- Published