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April 26, 1973


Appeal from Judge's denial of appel- May 28, 1971, in the amount of lant's petition for rehearing.

$3,866.65 accompanied by a promis

sory note and a statement of acAffirmed.

count. The proof of claim, among 105.1 Indian Probate: Administra- other things, states that: tive Procedure: Applicability to Indian

George T. Cooley doing business at the Probate

town or city of Lodge Grass, Montana,

has Judge must conform to the requirements

George's Food Mart of the Administrative Procedure Act, 5

charge of the books and accounts of the

said claimant and knows the attached t'.S.C. $ 554 (1970) and give adequate notice and afford interested party oppor

itemized statement of account is a true tunity to be heard.

and correct statement of the account of

the claimant for merchandise or services 165.10 Indian Probate: Claims

sold or rendered to the decedent and Against Estate: Proof of Claim

shows all charges and credits and the

dates, thereof; that the prices charged When an objection is made to, and evi

were the fair and reasonable prices theredence is submitted challenging the

fore at that time; that after allowing all validity of, a creditor's claim, the creditor must be present at the hearing and

credits and set-offs, there is still due and

owing to the claimant a balance of $3,the burden is on the creditor to prove his

866.65, now past due and owing from the claim.

decedent to the claimant. 370.0 Indian Probate: Rehearing:

No itemized statement of account Generally

of the claimant for merchandise or A petition for rehearing, based upon evi- services sold or rendered to the dence which fails effectively to controvert

decedent was included with the the basis of the initial decision in the

claim. matter, will be disallowed.

The promissory note in the sum APPEARANCES: Bert W. Kronmiller, of $2,775.10 and payable to George Esquire, for Appellant.

T. Cooley with interest at 8 percent

per annum was co-signed by the OPINION BY MR. SABAGH

decedent and her husband, James INTERIOR BOARD OF

Lion Shows. The statement of acINDIAN APPEALS

count includes the principal amount This matter comes before the of the note, $2,775.10, with interest Board on appeal from the Adminis- to May 26, 1971, of $1,091.55, agtrative Law Judge's denial of ap- gregate amount of $3,866.65, pellant's petition for rehearing of Notice of Hearing to Determine his claim against the estate of the Heirs or Probate Will and Notice decedent.

to Creditors was mailed to all inNeola Agnes Gardner, Lion terested parties on October 15, 1971, Shows died intestate on April 29, and Notice was posted at the Post 1971, at the age of 56 years. Appel

of 56 years. Appel- Office, Lodge Grass, Montana, on lant filed a creditor's claim on the same date.

Appellant failed to appear at the 1. Creditor claim was presented hearing. The hearing was held pur- and properly filed which was denied suant to the notice on November 9, for the failure of the appellant to 1971, at which time objection was personally appear and defend same made to appellant's claim and testi- at the original hearing. mony taken in substantiation of the 2. Evidence exists in the form of objection. The defense against the oral testimony and written docuclaim raised at the hearing was that ments to verify the claim. security had been given and had 3. Failure to appear was due to been foreclosed without proper appellant's unawareness of any obcredit; that the note was paid. The jections to his claim. Judge issued a decision and order 4. Appellant's business necessidated January 12, 1972, wherein he tated his continuous presence durdenied appellant's claim based on ing working hours. the promissory note. On March 8, 5. He was never required to be 1972, appellant petitioned for re- present to present similar such hearing for the following reasons: claims in 20 years as a businessman.

1. The claim was for groceries, 6. Hearing Examiner by his ormeat, and other food and supplies der denying the petition for rehearfurnished by the petitioner and not ing has denied him an opportunity for money loaned in exchange for of presenting new facts, evidence certain artifacts pawned with peti- and information in the form of oral tioner as testified to at the hearing. testimony relative to the claim.

2. The artifacts were pawned Let us now turn to the question of with the petitioner for more than whether the Judge erred in disalthree years and had no exceptional lowing appellant's petition for revalue as manifested at the hearing. hearing. 3. Testimony at the hearing

Pursuant to long-established failed to allude to the true nature of principles of law, the Judge after the claim, i.e., for groceries and sup

proper notice was required to afford plies furnished the decedent.

a party in interest an opportunity The Judge issued an order on

to be heard. 5 U.S.C. $ 554 (1970). March 22, 1972, disallowing the pe

The appellant was properly noti

fied that his claim would be considtition for rehearing, wherein he found that:

ered at a hearing to be held on No

vember 9, 1971, at 2 p.m., and the * the petitioner failed to sustain

Notice admonished him to be presthe burden of proving his claim and that no valid reason for the failure to appear

ent in these words: at the hearing has been presented.

All persons having an interest in the The appellant filed an appeal on

estate of the above-named decedent, and May 18, 1972. Several grounds were

all creditors having claims against said

estate, are hereby notified to be present offered in support thereof, which

at the hearing and furnish such evidence are substantially as follows:

as they desire. (Italics supplied.)

April 26, 1973

A rehearing will be granted may establish a prima facie right to where the original hearing did not

recovery in the claimant, but where the conform with the standards of a full

only evidence thereafter submitted to the

Examiner in regard to the claim directly opportunity to be heard embodied

challenges the claim's validity, claimant in the Administrative Procedure must then go forward with evidence to Act, but not otherwise. Estate of discharge his burden of proving the claim

and unless such burden is sustained the Little Tooy (Tobin), A-24519

claim cannot be allowed. (Italics sup(February 14, 1947).

plied.) Estate of Louise Sanderville Appellant states in his appeal Berrychila Croft, IA-1288, May 16, 1966. that he was not present at the initial

The appellant maintains in his hearing because he was not aware of any objections to his claim appeal that the order denying his against the decedent's estate; that petition for rehearing was errone

ously issued though the petition his business necessitated his con

alleged that new facts, evidence and tinuous presence; and that in 20

information in the form of oral years as a businessman filing simi

testimony and written documents lar such claims he had never been

would be presented. The nature of required to be present to present a

the written documents or the oral creditor's claim.

testimony was not disclosed. HowIt may be said that the submission of the Proof of Claim estab- hearing referred to original tickets

ever, the original petition for relishes a prima facie right to recover

or invoices * * * in the possession of which, in the absence of objections,

your Petitioner * * * * would afford a basis for allowance

New evidence is evidence that was of the claim. However, claimant had

not available to the appellant at the the burden of proof as to the claim

time of the hearing (November 9, and the person objecting thereto

1971) and subsequent thereto beneed only rebut the prima facie case

came available. Obviously this is made, not disprove the case entirely.

not the case here. The evidence and Controller v. Lockwood, 193 F.2d

information that he now wishes to 169 (9th Cir. 1951); In re A & G

submit were peculiarly within the Knitting Mills, 144 F.2d 125 (3d. knowledge of the appellant at the Cir. 1944); In re George R. Bur- time of the hearing and could have rows, Inc., 156 F.2d 640 (2d. Cir. been presented had he been present 1946); In re Varney, 22 F.2d 230 at the hearing. It is not new. (6th Cir. 1927).

We cannot agree with the appelWhere an interested party rebuts

lant and conclude that the Judge the prima facie case made by the did not err in denying the petition claimant, the Department has con- for rehearing sistently held that:

To recapitulate, the appellant was * [A] duly filed proof of claim

properly notified and afforded an against the estate of a deceased Indian opportunity to be heard. He chose not to. Objection was made and evi- sion and order of the Judge denydence was submitted concerning the ing the petition for rehearing. validity of appellant's claim. The NOW THEREFORE, by virtue appellant was not present to de- of the authority delegated to the fend his claim. In other words, the Board of Indian Appeals by the appellant sat on his rights. He sat Secretary of the Interior, 43 CFR silent and took the chance of a fa- 4.1, the appeal is DISMISSED, and vorable decision on the record made. the order of January 12, 1972, denyHe should not now be permitted to ing the claim of George T. Cooley reopen the case for the introduction stands unchanged. This decision is of evidence long available and sus- final for the Department. ceptible of production at the orig

MITCHELL J. SABAGH, Member. inal hearing.

I CONCUR: We find no merit to any of the contentions raised against the deci- DAVID J. MCKEE, Chairman.

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