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road track, and ascertain the condition, and observe and note the condition of the switches, and whether open or closed; and that for 40 minutes before the arrival of Barker's train the target of the switch stand indicated that the switch was open, and Orrell could, and with the exercise of reasonable diligence would, have seen that the switch was open and could have raised his semaphore danger signal in time to have enabled the decedent to have stopped his train before the same ran into said open switch, but said Orrell carelessly and negligently set said semaphore signal so as to indicate to the decedent that said main track was clear and safe, when he well knew or might, with reasonable diligence, have known, that said track was not clear and safe. By reason of said negligence and the display of said erroneous signal by Orrell the decedent was misled and ran his train at great speed into said open switch, collided with other cars, and was killed. In this paragraph there are sufficient averments that the company maintained at Quincy, within plain view of the telegraph operator and station agent, a switch stand surmounted with painted wings or blades that indicated automatically whether said switch was open or closed, and that it also maintained at its Quincy station a semaphore signal that was in charge of one Orrell, who was employed by the company to operate the same for the purpose of informing appellant's servants who were engaged in operating trains running over appellant's road of the condition of the track, as to whether it was clear and safe for them to proceed, or obstructed and dangerous, and whether the switch was open or closed. It is also averred that it was the "duty" of Orrell before the arrival of trains to look out of the window and examine the defendant's track, and observe and note the condition of the said switch, as to being open or closed, and to signify by the use of the semaphore the safe or unsafe condition of the track and switch to those employés approaching the station with their trains; but, as in the preceding paragraphs, there is a total failure to inform the court by averment how it became Orrell's duty to inspect the switch before the arrival of trains, whether it was enjoined upon him by the terms of his contract of employment, as it was to operate and control the semaphore, or whether by a rule of the company, or by a prevailing custom, or whether it sprang from the mere surmise of the pleader. If it was not a duty of his employment to inspect the switch, his failure to do it would not be negligence. The language falls far short of alleging that Orrell was employed by the defendant for the purpose of inspecting the switch and track before the arrival of trains, and to communicate to approaching trainmen, by means of the semaphore, the true condition they were in. From the language used the purpose of the employment by defendant was limited to managing and controlling the semaphore, to communi

cate to trainmen operating trains on the defendant's railroad whether the track was in good condition and safe to proceed, and whether the switch was open or closed. From the averments we cannot infer that it was the duty of Orrell to determine the condition of the switch. See authorities heretofore cited.

There are other questions arising upon appellant's motion for judgment on the answers to interrogatories and upon the overruling of its motion for a new trial that are left unconsidered because not likely to arise again upon a retrial.

The judgment is reversed, with instructions to sustain the demurrer to each the first, second, third, and fourth paragraphs of the complaint, and for further proceedings not inconsistent with this opinion. Judgment reversed.

(169 Ind. 662)

TULLIS v. SHAW. (No. 21,123.) (Supreme Court of Indiana. Jan. 16, 1908.) 1. HABEAS CORPUS-GROUNDS FOR RELIEF.

A proceeding by habeas corpus is a collateral attack on a judgment committing petitioner to custody, and cannot succeed unless the judg ment is void for want of jurisdiction; the writ being unavailable for the correction of errors, no matter how gross.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 25.]

2. CRIMINAL LAW-COMPLAINT-NATURE OF OFFENSE.

A complaint charging that defendant did encourage prosecutrix, a girl under the age of 15 years, to commit an act of delinquency, to wit, that defendant held illicit sexual intercourse with her, should be construed, in so far as the allegation of prosecutrix's age was concerned. as if it alleged merely that she was under the age of 17, within Acts 1905, p. 441, c. 145, § 2 as amended by Act 1907, pp. 266, 267, c. 169, providing that any person who causes or encourages any girl under the age of 17 to commit an act of delinquency, as defined, etc., shall be guilty of a misdemeanor, under the rule that in criminal cases the substance of the charge only need be proved, the substance in the instant case, so far as the age of prosecutrix was concerned, being that she was under 17. 3. WORDS AND PHRASES-"SCILICET"-"VIDELICET.

The natural and proper use of either a scilicet or videlicet is to particularize that which had been before stated generally, and to explain that which is indifferent, doubtful, or obscure. It may sometimes work a restriction of the preceding allegation, but cannot, in general, be used to preface anything contrary or repugnant to the premises, nor to increase or diminish the preceding matter, and if it attempts to do so, the statement made under it will be rejected as surplusage-citing 8 Words & Phrases, pp. 7319, 7320.

4. CRIMINAL LAW AFFIDAVIT - CONSTRUC

TION.

Acts 1905, p. 441, c. 145, § 2, as amended by Acts 1907, pp. 266, 267, c. 169, provides that any person who encourages any girl under 17 to commit any act of delinquency, as defined in section 1. or who violates any provision of sec tion 2, as amended, is guilty of a misdemeanor, and may be tried and convicted in the juvenile court. Laws 1905, p. 662, c. 169. § 361, amended by Acts 1907, p. 85. c. 60, § 1. declares that whoever unlawfully has carnal knowledge of a

female child under 16 is guilty of rape. An affidavit charged that defendant, on a specified day, did encourage prosecutrix, a girl under 15 years of age, to commit an act of delinquency, to wit, that defendant held illicit sexual intercourse with her, etc. Held, that the affidavit did not charge defendant with rape in violation of section 361, but charged a misdemeanor only, within the jurisdiction of the juvenile court. 5. HABEAS CORPUS-DECISION-JURISDICTION.

Where an affidavit presented to the juvenile court, charging defendant with encouraging a girl under 15 to commit an act of delinquency, to wit, that defendant held illicit sexual intercourse with her, was claimed to charge a felony because of the allegation following the videlicet, the juvenile court had jurisdiction to determine whether the charge was repugnant to the allegation preceding the videlicet, and if so, whether it nullified such charge of misdemeanor, or whether the charge of felony should itself be rejected as surplusage or a repugnant allegation, leaving the charge of misdemeanor to stand alone, and hence the court having decided that the evidence charged a misdemeanor, and that it had authority to try the case on the merits, the judgment was not without jurisdiction so as to entitle defendant to a discharge on habeas corpus.

6. CRIMINAL LAW-AFFIDAVIT-JUDGMENT— COLLATERAL ATTACK.

That an affidavit under which defendant was held was defective or failed to properly charge a public offense, under Acts 1905, p. 441, c. 145, § 2, as amended by Acts 1907, pp. 266, 267, c. 169, providing that any person who encourages children to commit acts of delinquency shall be guilty of a misdemeanor, did not render the conviction void or subject to collateral attack.

Appeal from Superior Court, Marion County; J. L. McMasters, Judge.

Habeas corpus by Edgar Tullis against Agustus D. Shaw, as superintendent of the Marion County Workhouse. From a final judgment remanding petitioner to custody, he appeals. Affirmed.

Averill & Collins, for appellant. James Bingham, Alexander G. Cavins, Edward M. White, and Henry M. Dowling, for appellee.

MONKS, C. J. It appears from the application for said writ that appellant was on August 15, 1907, arrested and brought before the Marion juvenile court upon an affidavit, which charged that the appellant within Marion county, state of Indiana, "did, on or about August 15, 1907, cause and encourage one [naming her], a girl under the age of 15 years, to commit an act of delinquency as defined in the statute in such case made and provided in this, to wit, that he, the said Edgar Tullis, held illicit sexual intercourse with the said [naming her]; that he also aimed to assist said [naming her] to make her escape from the Indiana Industrial School of which institution she is an inmate," etc. Said affidavit was signed and sworn to August 15, 1907. Appellant was arraigned upon said charge, and entered a plea of not guilty. Said cause was tried by the court, and on August 26, 1907, the court found appellant guilty, and that he be fined in the sum of $500 and imprisoned in the Marion County Workhouse for 180 days. Judgment was rendered upon the finding. Appellant is re

strained and imprisoned by virtue of said judgment, and the commitment issued thereon.

It is alleged in said application "that the Marion juvenile court is a court of limited and special jurisdiction, and has by law no jurisdiction of the subject-matter of the offense charged in the affidavit, for which reason said judgment was and is absolutely void." It is provided in section 2, Acts 1905, p. 441, c. 145, as amended by the act of 1907 (Acts 1907, c. 169, pp. 266, 267), that: "It shall be unlawful for any person to cause or encourage any boy under the full age of sixteen years or any girl under the full age of seventeen years to commit any act of delinquency as defined and specified in section one (1) of this act; * or to knowing

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ly encourage, contribute to or in any way cause such child to violate any law of this state or the ordinance of any city; or knowingly permit, contribute to, encourage or cause any such child to be guilty of any vicious or immoral conduct, and any persons so offending shall be guilty of a misdemeanor and may be tried for such offense in the juvenile court, and any person convicted shall have the right to appeal to the appellate court * *. And if in any proceeding before any juvenile court, it shall appear that any person may have committed any felony that caused or contributed to the delinquency of a child, the judge of said court may have such person brought before him upon proper warrant, and if upon preliminary examination it shall appear that such person is probably guilty of the offense charged, he may be recognized, as recognizances are now provided by law, to appear at the next term of the criminal court of said county, or if there be no criminal court, then of the circuit court of said county."

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It is insisted by appellant: That said affidavit charged him with the commission of a felony under that part of section 361 of the "act concerning public offenses" (Laws 1905, p. 662, c. 169), as amended by the act of 1907 (Acts 1907, p. 85, c. 60), which reads as follows: "Whoever unlawfully has carnal knowledge * of a female child under sixteen years of age * is guilty of rape and on conviction shall be imprisoned in the state prison not less than two years nor more than twenty-one years *." That as the Marion juvenile court has under said act of 1907, above set out, only the power of an examining magistrate to examine into said charge of felony, and either to recognize him to appear at the next term of the criminal court of said county or discharge him, said court in trying said case upon its merits and assessing the punishment therefor was without jurisdiction, and said judgment was void. This proceeding by habeas corpus is a collateral attack on said judgment, and cannot succeed, unless said judgment is absolutely void, because said writ cannot be used for the correction of errors, no matter how gross the errors. McLaughlin v. Etchison, 127 Ind.

474, 476, 27 N. E. 152, 22 Am. St. Rep. 658, and cases cited; Turner v. Conkey, 132 Ind. 248, 252, 254, 31 N. E. 777, 17 L. R. A. 509, 32 Am. St. Rep. 251; Pritchett v. Cox, 154 Ind. 108, 113, 56 N. E. 20; Webber v. Harding, 155 Ind. 408, 413, 58 N. E. 533; Peters v. Koepke, 156 Ind. 35, 38-40, 59 N. E. 33; Koepke v. Hill, 157 Ind. 172, 174-178, 60 N. E. 1039, 87 Am. St. Rep. 161, and cases cited; Lee v. McClelland, 157 Ind. 84, 89, 90, 60 N. E. 692; Williams v. Hert, 157 Ind. 211, 60 N. E. 1067, 87 Am. St. Rep. 203; Gillespie v. Rump, 163 Ind. 457, 462-469, 72 N. E. 138, and cases cited; Cruthers v. Bray, 159 Ind. 685, 65 N. E. 517; section 1133, Burns' Ann. St, 1901 (section 1119, Rev. St. 1881). It will be observed that under section 2 of the act of 1905 (Acts 1905, p. 441, c. 145), as amended by the act of 1907 (Acts 1907, pp. 266, 267, c. 169), that any person who causes or encourages any boy under the full age of 16 years or any girl under the full age of 17 years to commit any act of delinquency as defined in section 1 of said act (Acts 1905, p. 440), or who violates any provision of section 2 of said act, as amended in 1907, is guilty of a misdemeanor, and may be tried and convicted of such offense in said juvenile court, from which judgment an appeal may be taken to the appellate court. The affidavit in this case against appellant in the juvenile court purported to charge appellant with causing and encouraging a girl under the age of 17 years in an act of delinquency, as defined in said sections 1 and 2, supra, a misdemeanor. It is evident that said affidavit did not attempt to charge appellant with the crime of rape on a child under 16 years, the age of consent, for the reason that the allegation concerning her age is in connection with that part of the affidavit which purports to charge appellant with a misdemeanor; that is, causing and encouraging her to commit an act of delinquency as defined by section 1, Acts 1905, and section 2 thereof, as amended in 1907.

Said sections are for the protection of girls "under the full age of 17 years." The allegation in that connection, that she was under the age of 15 years, was, in effect and substance, that she was "under the full age of 17 years." If she was under said age of 17, what her age really was, or how much it was under 17 years, was immaterial. State v. Newton, 44 Iowa, 45, 47; State v. Fetterly, 33 Wash. 599, 602, 74 Pac. 810; People v. Gardner, 98 Cal. 127, 32 Pac. 880; Inman v. State, 65 Ark. 508, 47 S. W. 558.

In criminal as in civil cases only the substance of the issue or charge need be proved. 4 Elliott, Evid. § 2714; 1 Greenl. Evid. §§ 5673; 3 Greenl. Evid. § 23; Underhill, Crim. Evid. § 31; Roscoe's Crim. Evid. pp. 128, 129; Indianapolis, etc., R. Co. v. Marschke, 166 Ind. 490, 496, 77 N. E. 945. As the substance of the issue as to the age of said girl was that she was under the full age of 17 years, said affidavit must be treated the same as if it alleged that she was under said age of

17, instead of under the age of 15. When so read, it cannot be claimed under the rules of pleading that it charged appellant with the crime of rape on a girl under 16 years of age, and it is clear that it did not charge him with rape on a woman 16 years of age or over. Moreover, it will be noted that what is alleged concerning appellant's having illicit sexual intercourse with said girl is laid under a videlicet, "to wit." The rules applicable to what is alleged under a videlicet have been the subject of must discussion by the courts. It is said in 19 Ency. Pl. & Prac. pp. 251-253: "The natural and proper use of either a scilicet or a videlicet is to particularize that which has before been stated generally, and to explain that which is indifferent, doubtful, or obscure. However, it sometimes may work a restriction of the preceding allegations when they are not express and special, but are so indifferent that they are capable of being restrained without apparent injury to them, though by construction of law they would have had the larger sense if there had been no videlicet. It cannot, as a general rule, be used to preface anything contrary or repugnant to the premises, nor can it increase or diminish the precedent matter, and if it attempts to do either the statement made under it will be rejected as surplusage. Armstrong v. Jackson, 1 Blackf. (Ind.) 210, 12 Am. Dec. 225; Blackwell v. Justices, 2 Blackf. (Ind.) 143, 147; Groves v. McCabe, 8 Blackf. (Ind.) 88; State v. Brown, 51 Conu. 1; Dakin's Case, 2 Saund. 291, and notes." See, also, Wharton, Crim. Pl. & Prac. §§ 122, 158a; Gould, Pl. §§ 36-41; 19 Ency. Pl. & Prac. pp. 251-257; Clark Crim. Proc. pp. 173, 174; 8 Words & Phrases, pp. 7319, 7320; 1 Bishop, New Crim. Proc. 406. The part of said rule that, when the matter laid under a videlicet is immaterial and impossible or repugnant to what precedes, the videlicet will vitiate the pleading as an entirety, has been somewhat modified in this state by section 1833, Burns' Ann. St. Supp. 1905 (Acts 1905, pp. 625, 626, c. 169, § 192), which provides: "That no indictment or affidavit shall be deemed invalid nor shall the same be set aside or quashed nor shall the trial judgment or other proceeding be stayed, arrested or in any manner affected for any of the following defects. Sixth. For any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged. Tenth. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits."

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We have already shown that the allegations of said affidavit preceding the videlicet purported to charge a misdemeanor, and not a felony, and even if what is alleged under the videlicet concerning appellant having illicit intercourse with said girl charged a felony as claimed by appellant, the question was presented for the determination of

the juvenile court whether or not, under the rule applicable to pleadings under a videlicet, as modified by section 1833, Burns' Ann. St. Supp. 1905, supra, said charge of felony was repugnant to, or inconsistent with, the allegations preceding the videlicet, and, if so, whether it nullified such allegations, or whether said charge of felony should itself be disregarded as "surplusage" or as a "repugnant allegation," thus leaving said allegation preceding the videlicet, and the other allegations under the videlicet in full force, and the affidavit charging only a misdemeanor. Said Marion juvenile court was given full and complete jurisdiction to hear and determine all charges of misdemeanor under said act of 1905 (Acts 1905, pp. 440-442) and section 2 thereof, as amended in 1907 (Acts 1907, pp. 266, 267), and as said affidavit purported to charge a misdemeanor under said act of 1905 and the amendment of 1907, said court had full and complete jurisdiction of the subjectmatter thereof, and also, as the record shows, of the person of appellant. Having such jurisdiction, said court was bound to act, and decide all the questions heretofore mentioned and all other questions going to the sufficiency of the facts alleged in said affidavit to charge a misdemeanor under said acts of 1905 and 1907. If the court had jurisdiction to decide these questions correctly, it also had jurisdiction to decide them erroneously (Koepke v. Hill, 157 Ind. 172, 178, 60 N. E. 1039, 87 Am. St. Rep. 161), and if decided erroneously, this would not render the judg ment vold. The juvenile court by finding appellant guilty of a misdemeanor, and assessing his punishment therefor under section 3 of the act of 1905 (Acts 1905, p. 441), determined and adjudged that said affidavit only charged appellant with a misdemeanor under Isaid act of 1905 and the amendment of 1907. Even if said affidavit was defective, or failed to properly charge a public offense under said sections 1 and 2, supra, this would not render the judgment void and subject to collateral attack. McLaughlin v. Etchison, 127 Ind. 474, 27 N. E. 152, 22 Am. St. Rep. 658.

It follows from the authorities cited that, even though said judgment was erroneous, and there were intervening errors, the same is not void, and therefore not subject to collateral attack by habeas corpus, or in any other manner. Appellant's remedy to correct errors, if any were committed in said court, was by appeal to the proper appellate tribunal. It follows that the court below did not err in sustaining appellee's motion to quash the writ of habeas corpus. Judgment affirmed.

HILDEBRAND v. KINNEY. (No. 6,143.)1 (Appellate Court of Indiana. Jan. 17, 1908.) 1. EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE-LIMITATIONS.

Under Rev. St. 1881. § 298 (Burns' Ann. St. 1901, § 299), providing that, if any person liable to an action dies before the expiration of the

time limited for the action, the cause of action shall survive against his representative, and may be brought at any time after the expiration of the time limited within 18 months after the death of such person, a claim against a decedent's estate which accrued during the decedent's lifetime is barred by limitations, where no administrator is appointed until after the time fixed by the statute has elapsed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 1745.] 2. LIMITATION OF ACTIONS ACCRUAL OF RIGHT OF ACTION.

The general rule is that the statute of limitations does not begin to run until there is a demand capable of present enforcement, a suable party against whom it may be enforced, and a party competent to sue.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 217-219.] 3. EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE.

Rev. St. 1881, § 298 (Burns' Ann. St. 1901, 299), provides that, if a debtor dies before the expiration of limitations, the cause of action shall survive against his representative, and may be brought within 18 months after the death of such person. Acts 1901, p. 281, c. 121 (Burns' Ann. St. 1901, § 2380), relating to the appointment of administrators, confers on every creditor of an intestate the power to take out letters of administration himself, or to secure the appointment of a competent inhabitant of the county after 20 days from the death of the intestate have elapsed. Held, that the statute begins to run 20 days after the death of a decedent against a claim for his funeral expenses.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 17481750.]

Rabb, J., dissenting.

Appeal from Circuit Court, Marion Coun⚫ ty; James A. Pritchard, Judge.

Action by Phillip M. Hildebrand against Collie E. Kinney, administrator. Judgment for defendant, and plaintiff appeals. Affirmed.

U. J. Hammond, for appellant. Collie E Kinney, pro se.

ROBY, C. J. Two propositions are involv. ed in this appeal. First. Is a claim against a decedent's estate barred by the statute of limitations when such action accrued during the lifetime of the decedent, and where there has been no administrator until after the time fixed by the statute has elapsed? The general doctrine is that death does not stop the running of the statute. Wood, Limitation of Actions, § - -; 19 Am. & Eng. Ency. Law, 22. In this state the subject is fully covered by statutory provision: "If any person entitled to bring, or liable to any action, shall die before the expiration of the time limited for the action, the cause of action shall survive to or against his representative, and may be brought at any time after the expiration of the time limited, within eighteen months after the death of such person." Section 298, Rev. St. 1881 (section 299, Burns' Rev. St. 1901). The first proposition is therefore to be answered in the affirmative, the necessary time to bar the same being of course determined by the statutes. Second. Does the statute run before the appointment

Transferred to Supreme Court, 87 N. E. 832. Rehearing denied.

of an administrator, where the claim is for funeral and burial expenses of the decedent? The general rule is that the statute does not begin to run until there is a demand capable of present enforcement, a suable party against whom it may be enforced, and a party competent to sue. 19 Am. & Eng. Ency. Law, 220. The statute of limitations is in part as follows: "The following actions shall be commenced within six years after the cause of action has accrued and not afterward." Section 292, Rev. St. 1881 (section 293, Burns' Rev. St. 1901). The statute by which an action for the death of another is given provides that the action "shall be commenced within two years." Acts 1899, p. 405, c. 177 (section 285, Burns' Rev. St. 1901). It is held that this limitation being contained in the statute by which the right of action is given becomes a condition, compliance with which must be shown by the complaint. Hanna v. Jeffersonville R. Co., 32 Ind. 113; Elliott v. Brazil, etc., 25 Ind. App. 592, 58 N. E. 736. The same rule applies to actions brought to set aside final settlement reports of administrators and guardians. Briscoe v. Johnson, 73 Ind. 573. Where the cause of action relied upon is not thus expressly given by statute, there are exceptions, and therefore the limitation relied upon must be raised by answer in order that the exception may be replied. Hanna v. Jeffersonville R. Co., 32 Ind. 113; Epperson v. Hostetter, 95 Ind. 583; J. M. & I. R. v. Hendricks, 41 Ind. 48, 62.

The statute relative to the appointment of administrators is as follows: "At any time after the death of an intestate the proper clerk or court having examined the person applying for letters, and such persons as may be deemed proper to be examined, under oath, touching the time and place of the death of the intestate, whether he left a will and concerning the qualifications of such persons, and there being no such will, shall grant letters of administration in their order: First: To the widow or widower. Second: To the next of kin. Third: To the largest creditor applying and residing in the state. Fourth: If no such person thus entitled to administer shall apply within twenty days after the death of the intestate, the clerk or court shall appoint a competent inhabitant of the country, to whom letters shall issue. Fifth: * * *." Acts 1901, p. 281, c. 121 (section 2380, Burns' Rev. St. 1901). The express terms of this act confer upon every creditor the power to take out letters himself, or to secure the appointment of "a competent inhabitant of the county" after 20 days have elapsed. Bowen v. Stewart, 128 Ind. 507, 26 N. E. 168, 28 N. E. 73. Appellant, who was both heir and creditor, neither applied for letters himself, nor invoked action by the clerk or court in that behalf, as he might have done. It is as much within the power of a creditor to prosecute his claim 20 days after the decedent's death as it ever

could be. It is true he is not compelled to take out letters, nor is he compelled to institute any action, but he may do both. It is true that the procedure required was different from that necessary to a civil suit against a person in life. Such procedure involves the appointment of a person to act for the estate and the filing of a claim. The important thing is that a remedy is furnished. The steps necessary to the remedy are incidental, not vital.

The answer to the proposition mooted is given by Hanna v. Jeffersonville R. R., supra: "It is important, then, to inquire when the two years began to run. The language of the statute does not furnish an express answer to this inquiry. But it does not appear possible to suppose that the Legislature meant that it should be from the appointment of the administrator. The damages accrue to the widow and children or next of kin. They can procure administration as and when they wish. They can move promptly, and in many cases they can delay at their pleasure.

* If by delay to procure the appointment of an administrator the suit might be brought four years after the event which made the cause of action completely mature, it might, by the same method, be delayed for any length of time." Statutes of limitations are statutes of repose. There should be as little uncertainty as possible in their terms and in the construction placed upon them. What the limitation is does not so much matter, as that it be certainly known what it is. The statute covers the ground, and it began to run 20 days after the death of decedent. These considerations lead to an affirmance of the judgment. It is so ordered.

COMSTOCK, MYERS, HADLEY, and WATSON, JJ., concur.

RABB, J. (dissenting). I am unable to concur in the opinion of the court in this case. The sole question presented is whether or not the statute of limitations will begin to run in favor of an estate against a claim for funeral and burial expenses until after the appointment of an administrator. The general rule announced by the court, that a cause of action does not accrue within the meaning of the statute of limitations until there exists a demand capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it, is recognized by the Supreme Court of this state in the case of City, etc., v. Hamilton, 132 Ind. 495, 32 N. E. 327, 32 Am. St. Rep. 263, where this quotation is taken with approval from Boswell on Limitations: "A cause of action cannot be said to have accrued until such time as the plaintiff can legally institute his action for relief." The appellant in this case could not legally institute his action for relief until there had been an administrator appointed for the es

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