{
  "id": 1681355,
  "name": "Edwards v. Brimm, Ex'x",
  "name_abbreviation": "Edwards v. Brimm",
  "decision_date": "1963-05-13",
  "docket_number": "5-2986",
  "first_page": "588",
  "last_page": "593",
  "citations": [
    {
      "type": "official",
      "cite": "236 Ark. 588"
    },
    {
      "type": "parallel",
      "cite": "367 S.W.2d 433"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T16:38:16.140393+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Edwards v. Brimm, Ex'x."
    ],
    "opinions": [
      {
        "text": "Paul Ward, Associate Justice.\nFrances Shelton died on November 8, 1960 leaving a will dated May 4, 1957. The Probate Court of Dallas County entered an order, dated November 18, 1960, admitting the will to probate and appointing appellee, Beulah Brimm, executrix. On November 19, 1960 the executrix signed and posted a notice (as provided by Act 32 of 1953) to all persons having claims against the estate, stating the will had been admitted to probate. The case number of the proceedings was 981.\nOn May 13,1961 Moses C. Edwards (a nephew of deceased) and his wife filed (or attempted to file) a petition asking the court to revoke the probate of said will and also filed (or attempted to file) a claim against the estate in the amount of $7,433.55. There is no contention by anyone that the petition and claim were not in proper form.\nIt is the contention of the executrix, based on the factual situation presently set forth, that the above mentioned pleadings were never legally filed. This was also the finding of the trial court.\nThe record discloses that appellants and one of their attorneys live in Chicago; that said attorney mailed a letter to the probate clerk at Fordyce, Arkansas (county seat of Dallas County); that in said letter was enclosed the petition and the claim (above mentioned) for filing-in case No. 981; and, that the attorney also mailed a copy of the claim to appellee\u2019s attorney of record.\nThe basic contention of appellee to sustain the decree of the trial court (which dismissed the petition and claim) is that the petition and the claim both were captioned \u201cIn the Probate Court of Garland County, Arkansas\u201d when they should have been captioned \u201cIn the Probate Court of Dallas County, Arkansas.\u201d\nThe order of the trial court, in material parts, reads as follows:\n\u2018 \u2018 That the files in this case contain a letter dated May 13, 1961, signed by Irving Eisenberg, addressed to the Clerk of the Probate Court of Garland County, Fordyce, Arkansas, enclosing- (1) Petition to Contest Will and (2) Claim of Moses C. Edwards and Ida Mae Edwards of 2210 W. 13th St., Chicago, Ill. Both the Petition to Contest the Will and the Claim show in the caption thereof that they are to be filed in the Probate Court of Garland County, Arkansas . . . The letter dated May 13, 1961, and enclosures were forwarded to the Clerk of the Probate Court of Dallas County, but due to the fact that they were to be filed in the Garland Probate Court, no Notice was given to Beulah Brimm by registered mail as provided by Sec. 113 b of the Probate Code, and no further action was taken thereon.\n\u201cThe Claim and Petition to Contest the Will were placed in the file of papers in the case of the Estate of Prances Shelton, deceased, in the Clerk\u2019s Office in Dallas County, Arkansas, but were not filed. \u2019 \u2019\nIt is undisputed that appellants had until May 19, 1961 to file the petition and claim. In view of the language used by the trial court, and in the absence of any contention to the contrary, we think the record establishes the fact that the letter, the petition, and the claim reached the clerk of the Dallas County Probate Court before the date above mentioned.\nPor reasons presently set out, we think the trial court erred in striking appellants\u2019 petition and claim from the files. Every fact and circumstance indicates that the substitution of the word \u201cGarland\u201d for the word \u201cDallas\u201d was merely a clerical error or oversight, and that no one was actually deceived, misled, or prejudiced. It is evident from the record that the Chicago attorney used printed forms sent to him by an associate attorney who lived in Hot Springs (Garland County), which forms were printed for use in \u201cGarland\u201d County. There can be no doubt whatever that the papers were to be filed in case No. 981 pending in the Dallas County Probate Court. They specified case No. 981, they identified the case No. 981 by reference to parties named in that case, and they were mailed to Pordyce in Dallas County. The record also discloses that copies of papers were sent to appellee\u2019s attorney of record in case No. 981. Such being the facts and circumstances, to deny appellants their day in court would be an injustice and not in keeping with our liberalized form of pleadings as indicated by Ark. Stats. \u00a7 27-1160 and \u00a7 27-131. Among other things the former section provides:\n\u201cThe court may, at any time, in furtherance of justice . . . amend any pleadings or proceedings ... by correcting a mistake in the name of a party or a mistake in any other respect. . . . The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party. ...\u201d\nThe latter section reads as follows:\n\u2018 \u2018 The rule of common law that statutes in derogation thereof are to he strictly construed shall not be applied to the Code. The provisions of the Code, and all proceedings under it, shall be liberally construed, with a view to promote its object and to assist the parties in obtaining justice.\u201d\nThe general rule as to liberality in pleadings is well stated in 71 C. J. S. Pleading \u00a7 50, \u201cClerical Errors; Mistakes in Writing or Spelling\u201d:\n\u201cG-enerally mere clerical or typographical errors which could not have misled the opposite party will not vitiate a pleading. Such errors are corrected by the context of the pleading or are self-correcting. Thus mere clerical mistakes, such as the use of one word or one name for another, where there is and can be no doubt as to what word the pleader intended to use ... will not render a pleading bad. ...\u201d\nWe again point out that all the facts' and circumstances point unerringly to the intention of appellants to file their pleadings in case No. 981 pending in Dallas County Probate Court pertaining to the estate of Prances Shelton.\nWe conclude therefore that the petition and the claim should be considered as properly filed in case No. 981 prior to May 19, 1961.\nIn view of what we have said above, appellants\u2019 petition was filed within the time prescribed in Ark. Stats. \u00a7 62-2114 b. (2) that is, \u201cwithin six months after the date of the first publication of the notice of the admission of the will to probate.5 \u2019\nIt is our conclusion that the claim was also properly filed. Aide. Stats. \u00a7 62-2601 a. provides, in pertinent part, that\n\u201c ... all claims against a decedent\u2019s estate . . . shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the court within six months after the date of the first publication of notice to creditors.\u201d\nAs previously pointed out, appellants\u2019 claim was filed with the court within the specified period of six months.\nIt is the contention of appellee, however, that the trial court was justified in striking the claim because no proper notice of the filing of said claim was given as provided in Ark. Stats. \u00a7 62-2012 c. As appellee interprets this sub-section, it required appellants (in this case) to prepare the notice of filing and deliver it to the clerk ready for posting whereupon the clerk (as provided in Ark. Stats. \u00a7 62-2604 b.) \u201cshall, by registered mail, notify the personal representative of the filing of the claim. \u2019 \u2019\nWe find it unnecessary in this case to pass upon the merits of the above contention. In our opinion there was a substantial compliance with the statute by giving notice to appellee\u2019s attorney pursuant to the provisions of Ark. Stats. \u00a7 62-2012 e., which reads:\n\u201cSERVICE ON ATTORNEY. If there be an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be seiwed on the party in such proceeding or matter shall be served on the attorney and such service shall be in lieu of service upon the party for whom the attorney appears.\u201d\nIt is admitted in this case that appellee\u2019s attorney received a copy of appellants\u2019 claim before May 19,1961.\nIt is also argued here by appellee that the trial court was justified in dismissing the claim because appellants did not offer to pay the filing fees. This argument cannot be sustained in view of sub-section h. of said Section 62-2012 which reads:\n\u201cCOSTS OF NOTICE. All expense incurred in giving notice under the provisions of this Code shall be taxed as costs in the proceeding.\u201d\nThe judgment of the probate court is therefore reversed, and the cause is remanded, for further proceedings consistent with this opinion.\nReversed and remanded.",
        "type": "majority",
        "author": "Paul Ward, Associate Justice."
      }
    ],
    "attorneys": [
      "Leo Wulfsohn, Irving Eisenberg, Chicago, Illinois.",
      "L. Weems Trussell, for appellee."
    ],
    "corrections": "",
    "head_matter": "Edwards v. Brimm, Ex'x.\n5-2986\n367 S. W. 2d 433\nOpinion delivered May 13, 1963.\nLeo Wulfsohn, Irving Eisenberg, Chicago, Illinois.\nL. Weems Trussell, for appellee."
  },
  "file_name": "0588-01",
  "first_page_order": 618,
  "last_page_order": 623
}