SHUMAKE v. WALLER

SHUMAKE v. WALLER
1938 OK 366
80 P.2d 645
183 Okla. 225
Case Number: 28222
Decided: 05/24/1938
Supreme Court of Oklahoma

SHUMAKE
v.
WALLER

Syllabus

¶0 1. Where the defendant demurs to the evidence in chief of the plaintiff, and defendant afterwards introduces evidence, and thereafter plaintiff introduces further evidence, and in rebuttal, and the defendant fails to renew his demurrer to all the evidence, or request an instructed verdict, and permits the issues joined to be submitted to the jury upon all the evidence without objection and exception, the verdict on review in this court is conclusive so far as such evidence is concerned, except as to excessive damages, appearing to have been given under the influence of passion or prejudice.
2. A claim against a decedent's estate is not rendered void or voidable by reason of the fact that the notary before whom the affidavit required by section 1234, O.S.1931, 58 Okl.St.Ann. § 334, was taken, later became the attorney for the claimant in an action to establish the claim after rejection thereof by the administrator.
3. The claim required to be presented to the administrator or executor of the estate of a decedent, under O.S.1931, §§ 1233, 1234, 58 Okl.St.Ann. §§ 333, 334, need not be in any particular form as to the body thereof. If it advises the administrator or executor of the nature of the claim, the amount demanded, and shows enough to bar another action for the same demand, it is sufficient. Hamilton v. Blakeney, 65 Okl. 154, 156, 165 P. 141.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action to establish claim against an estate by W. T. Waller against Elias Shumake, administrator with the will annexed of the Estate of Samuel Shumake, deceased. Judgment for plaintiff, and defendant appeals.

Affirmed.

APPEAL AND ERROR 237(3)
30 ----
30V Presentation and Reservation in Lower Court of Grounds of Review
30V(B) Objections and Motions, and Rulings Thereon
30k234 Necessity of Motion Presenting Objection
30k237 At Trial or Hearing
30k237(3) Taking case or question from jury in general.
[See headnote text below]

APPEAL AND ERROR 237(5)
30 ----
30V Presentation and Reservation in Lower Court of Grounds of Review
30V(B) Objections and Motions, and Rulings Thereon
30k234 Necessity of Motion Presenting Objection
30k237 At Trial or Hearing
30k237(5) Direction of verdict.
Okla. 1938

Where defendant fails to renew demurrer to evidence or request instructed verdict at close of all evidence and permits submission of issues, verdict is conclusive on question of sufficiency of evidence, except as to excessive damages appearing to have been given under the influence of passion or prejudice.

EXECUTORS AND ADMINISTRATORS 227(1)
162 ----
162VI Claims Against Estate
162VI(B) Presentation
162k227 Statement and Verification of Claim
162k227(1) Form, requisites, and sufficiency of claim.
Okla. 1938

A claim filed against an estate advising the administrator or executor of the nature thereof, amount demanded and showing enough to bar another action for the same demand, is sufficient under statute, no particular form being necessary. 58 Okl.St.Ann. §§ 333, 334.

EXECUTORS AND ADMINISTRATORS 227(3)
162 ----
162VI Claims Against Estate
162VI(B) Presentation
162k227 Statement and Verification of Claim
162k227(3) Verification.
Okla. 1938

A claim against a decedent's estate is not void or voidable on ground that notary before whom affidavit required by statute was taken subsequently became attorney for claimant in action to establish claim after rejection thereof by administrator. 58 Okl.St.Ann. § 334.

Robert W. Maupin, of Oklahoma City, for plaintiff in error.
I. L. Harris and Ted R. Elliott, both of Oklahoma City, and Dennis Wright, of Harrah, for defendant in error.

GIBSON, Justice.

¶1 This action was commenced in the district court of Oklahoma county by W. T. Waller against Elias Shumake, administrator of the estate of Samuel Shumake, deceased, to establish the validity of a claim against said estate theretofore rejected by said administrator.

¶2 The petition duly alleges a contractual obligation on the part of said Samuel Shumake whereby his estate became indebted to claimant for services rendered and necessaries furnished him during the period preceding his death; that a claim therefor was filed in due time with said administrator and the same disallowed by him as shown by copy thereof attached. The parties are hereafter referred to in the order of their appearance at the trial.

¶3 Verdict was for plaintiff in the sum of $300, and judgment thereon, after remittitur ordered, was rendered in the sum of $150; and defendant appeals.

¶4 [1] [2] [3] This is a companion case to cause No. 28221, Shumake v. Haggard, Okl.Sup., 80 P.2d 643, this day decided. The assignments here would challenge the sufficiency of the evidence and the sufficiency of the petition. No proper demurrer to the evidence was interposed, and no request for peremptory instruction made; and the petition states a cause of action upon a rejected claim which appears to be in due form and apparently filed in time. The evidence is not reviewable, neither is the petition deficient.

¶5 The first three paragraphs of the syllabus in said cause No. 28221 are adopted as the law in this case, and judgment is affirmed.