Colburn

John R. Colburn, a physician, commenced this action against the executor of the last will and testament of Rosa Page, deceased, to recover a sum claimed as compensation for professional services rendered to the decedent. Judgment having been rendered against the defendant, he appeals therefrom and from an order denying his motion for a new trial. Pending appeal plaintiff died, and John R. Colburn, administrator, has been substituted as respondent herein.

It is claimed by appellant, that the action is barred by failure of the plaintiff to bring the same within three months after the rejection of the creditor’s claim. The plaintiff presented his claim to the defendant on March 15, 1913, and presented an amended claim on June 10, 1913. The executor took no action upon the claim as first presented, but on March 26, 1913, one H. A. Decker, purporting to act for the attorneys for the executor, notified the claimant that his claim “for services in the sum of $301.00 is hereby rejected. The amount stated in the claim is too large. Tour claim should be more particularly itemized.” The amended claim having been presented as above stated, it was rejected by the executor on July 9, 1913.…

The books of account of a plaintiff containing entries claimed to have been made by him in the lifetime of a deceased person, against whose estate he prosecutes a demand, are, by reason of subdivision 3 of section 1880 of the Code of Civil Procedure, in my opinion, not admissible in evidence. Clearly, such entries relate1 to matters and facts occurring before the death of such deceased person, and if the claimant here may not testify to the making of professional visits to the deceased and to charges therefor, he should not by entering in his account book the making of such visits, and thus, accompanied by evidence that he had the reputation of keeping fair and honest accounts, be permitted indirectly to testify to facts occurring before the death of the deceased. As said by the supreme court of Tennessee (Montague v. Thomason, 91 Tenn. 168 , [ 18 S. W. 264 ]) : “To limit the disqualification to verbal transactions and statements would do the greatest violence to both the letter and spirit of the statute, and place estates of dead persons, which it was designed to protect, at the mercy of corrupt parties. Even doubtful language would be so construed as to avoid such a result.” The…