Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-09-18
BY Massey, J.

On the i4th day Of January. 1899, O
Ionkey fled bis claim againe' the estate
of c.. G. PowIiing, deceased. The claim
was based upon Eote executed Ivy the
decedent in his lifetime, thu nr;IinI be
ing attached to the staten ert f rhc e. ain.
aEd the affidavit il supper: g.. .."'. On
the 10th day of Fehruar'. , ~, tn l.
minstratriN rejected STA clair, FOR the
reason that the aflidar;t there's. ttac!.ed
failed to comply with The requirements
Of the statute. 1t is 1i't necessary t.
note the defects in Tie affidavit. There
after on the 10Th day of February, 1892
he adninistrattix notified the clai,nant
of the r, election of IL" claim and or the
18th day Of March. 1880, Lonkey insti-
tuted suit in the district Court upon
said claim. On the 3rd Jay of June, 1899.
. upon notice to the administrators to that
effect, the claimant made application to
the District Court for leave to amend the
affidavit, which application was by the
order of the court refused. This appeal
is from the order refusing claimants mo-
ton to amend.
The administrators contends, that an
appeal WI not lie lTOu tIlS OlttT, aHt
asks us for an order of dismissal. The
claimant contends that the order comes
within the provisions of Section 80
Com. Laws, 1900, Sec. 304l), of the Act to
regulate the settlement of estates of de
ceased persons, and >hcNld be treated
all appeal from final judgment in an
action at law. The question as far as We
hay al a
full search, is new and must be deter
mined by the provisions OF the above
act.
The section prescribing the form of tn"
affidavit to be attached to the claim au-
thorizes the District Court in its discre-
ton, for good cause, upon application
made at any time before the filing of a
final account to allow defective atiida-
Wit to be corrected or amended.
(Com. Laws, 1900, Sec. 1894
1t cannot be doubted that there should
he some procedure 10y which the abuse a.
the discretion reposed in the court should
be reviewed and corrected sthe.W wise, 2:
it is urged under the decision Of the Sd
preme Court of California, the defect il
the affidavit would operate to defeat tht
right to recover in the action upon the
rejected claim. 1t is not necessary, a:
we think, to anticipate what should b'
the rule as to the effect of defectiv'
affidavit u pom the claimants right to re
cover under our statute, nor is it neces
sary to discuss the California case cite,
as the determination of these question
of procedure by all the courts are Of ne
cessity based upon the language, to
very great extent, used in the p@rticula
statute to be construed The rejection {
a claim by the administrators under on
statute for any reason is not a final dt
termination of the rights of the claim
ant; he may, under the statute, institute
suit thereon in which there are advers
parties and under the statutory rules re
serve all questions affecting his right
for review in the appellate court.
seems to us as necessarily arising fror
the provisions of our act that the CLAIM
ant having made his application to tt
court for leave to amend may, in maxim
his proofs in the action upOu the r.
jected claim, reserve any question grow
ing out of the abuse of the court of i
discretion in this matter.
The appeal will therefore be dismisse
We concur:
Bonnit!eld, c. j.
Belknap, J.
Filed September 10, 1900,
EUGENE HOwEI.
Secretary of State and Ex-ot1icio Cler
of the Supreme Court.
Filed with printer for publicatif
Sept Is, 1900.
EUGENE HOWELL.