Opinion
No. 28222.
May 24, 1938. Rehearing Denied June 28, 1938.
(Syllabus.)
1. Appeal and Error — Sufficiency of Evidence — Conclusiveness of Verdict in Absence of Proper Objections and Exceptions.
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. Executors and Administrators — Claim not Invalidated Because Statutory Affidavit Was Taken Before Notary Who Later Became Claimant's Attorney in Suit on Claim.
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 Okla. St. Ann. sec. 334, was taken later became the attorney for the claimant in an action to establish the claim after rejection thereof by the administrator.
3. Same — Essentials of Claim — Particular Form not Required.
The claim required to be presented to the administrator or executor of the estate of a decedent, under O. S. 1931, sections 1233, 1234, 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 Okla. 154, 156, 165 P. 141.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action 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.
Robert W. Maupin, for plaintiff in error.
I.L. Harris, Ted R. Elliott, and Dennis Wright, for defendant in error.
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.
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.
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.
This is a companion case to cause No. 28221, 183 Okla. 223, 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.
The first three paragraphs of the syllabus in said cause No. 28221 are adopted as the law in this case, and judgment is affirmed.
BAYLESS, V. C. J., and PHELPS, CORN, and HURST, JJ., concur.