Ross v. Hine
Supreme Court of Arkansas
APPEAL from Clark Circuit Court. Hon. H. B. Stuart, Judge. The motion for a non-suit under secs. 102, 107, Mansf. Dig., should have been granted. Neither prior to the suit nor afterwards was the legal authenticating affidavit made. Such an affidavit is a prerequisite to a right of action which the executor cannot waive. The affidavit to the complaint does not comply with the statute. 16 Ark., 647; 25 ib., 318; 30 ib., 756; 45 ib., 299.
1Opinion of the CourtCockrill, C. J.
The appellee sued an executor without first making the affidavit authenticating his claim against the estate as required by the statute. The executor moved to dismiss the action upon this ground. Ho affidavit was produced except the ordinary form of verification to the complaint, but neither this nor the allegations of the complaint conformed with any degree of substantiality to the statute authenticating claims against estates. Mansf. Dig., see. 102. The statute is peremptory in its terms directing a non-suit if the authentication is not made (lb., sec. 107), and this court has universally…
2Cited by7 opinions
- Dakota National Bank v. KleinschmidtSouth Dakota Supreme Court · 1914
- Hayden v. HaydenSupreme Court of Arkansas · 1912
- Cox v. PhelpsSupreme Court of Arkansas · 1897
- Hardy v. HardySupreme Court of Arkansas · 1939
- Carl-Lee v. GriffithSupreme Court of Arkansas · 1922
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