| Mo. | Oct 15, 1867
delivered the opinion of the court.
It may be gathered from the record in this case, that the subject matter of controversy between these parties is as to the correctness of an allowance made by the County Court of Jefferson county in favor of the plaintiff in error, and carried into his first annual settlement as a credit. An appeal was taken to the Circuit Court of that county, where the action of the County Court was held to be erroneous and the settlement set aside. The following extract from the records of the Circuit Court will show the facts found as well as its judgment: “And the court proceeding to try the cause anew, doth find that the said executor obtained credit in said County Court for the sum of $296.45 as costs, attorney’s fees and commissions, which accrued in a proceeding instituted by the plaintiff against the executor to recover her absolute property in the estate of said deceased; that said sum was illegally and erroneously allowed to said executor in said settlement; that the same should have been taxed against said executor de bonis propriis. It is therefore ordered,” &c. The case was taken to the Second District Court, by writ of error, and the judgment of the Circuit Court affirmed. It is now brought here upon a writ of error to the last named .court.
It is manifest upon this state of facts that the first inquiry must be directed to the question as to whether an appeal would properly lie from the action of the County Court.
The order of the court which placed the amount in controversy to the credit of the plaintiff in error upon the settlement of his accounts, was not a decision or determination of any matter separate and distinct from the settlement itself. On the contrary, it was just as much a part of it as any other item in the account. The agreed statement of facts upon which the case was decided in the Circuit Court as well as the judgment of that tribunal treats the whole proceeding as an appeal from the settlement. So we shall treat it here, and proceed to inquire whether the law authorizes
It is admitted that the language of the statute is very broad in setting out the second class of cases, but still we think there is no difficulty in coming to a proper conclusion as to its true intent and meaning. An appeal from one tribunal to another is never contemplated in any case except where there has been a final determination of the matter in controversy. This proposition need not be argued; it is too plain to admit of any doubt or cavil. The question is then fairly presented, viz.: Is an annual settlement of an executor or administrator a judgment? In the case of Picot v. Biddle’s Adm’r, 35 Mo. 29" court="Mo." date_filed="1864-03-15" href="https://app.midpage.ai/document/picot-v-ofallon-8001531?utm_source=webapp" opinion_id="8001531">35 Mo. 29, this question seems to have been very carefully considered. The former decisions of this court touching this point were examined with much care, and the conclusion reached, we think, most clearly followed from the reasoning of the judge who delivered the opinion of the court. We concur fully in the opinion that such settlements have not the force and effect of judgments, and are not conclusive against the persons by whom they are made, nor any other parties interested in the estate.
We apprehend that in all of the cases determined by this court, whenever settlements have been referred to as having the effect of judgments, they were final and not annual settlements. It has been the uniform practice of the courts having probate jurisdiction, and we think correctly so, to
With this yiew of the statute it is apparent that the appeal from the County to the Circuit Court was improperly taken. The propriety of allowing the credit claimed by the executor and carried into his annual settlement may still be reviewed upon a final settlement of his accounts, and we are therefore not called upon to express any opinion upon that point.
the judgment of the Circuit Court will be reversed and the cause remanded.