139 Mo. 118 | Mo. | 1897
This is a suit in equity by the only childi’en and heirs at law of J. W. Baldwin, deceased, to surcharge and falsify the accounts of I. M. Davidson as the administrator of the estate of said Joseph W. Baldwin, deceased. The suit was begun in the cir
At the request of plaintiffs the court made a finding of facts as follows:
“1. The court finds that at the May term, 1890, of the probate court of Butler county, Missouri, in which court administration proceedings were pending, the. defendant Davidson on Thursday, the fourth day of the term of said probate court, filed his final settlement, after having given due notice according to law of his intention to make said settlement'. The probate court approved said settlement by. its proper order entered of record. The court finds from the evidence that the attorney of the plaintiffs in this action, representing the heirs, had informed the probate judge that he desired to contest the settlement of Davidson prior to the filing thereof, and was informed by the said probate judge that when the settlement was filed, if it was fair on its face, he would approve it, and the heirs could then appeal from his judgment. The court further finds that the probate judge acted from no improper motives in so advising counsel; that defendant Davidson was not.advised that any contest was to be made upon said settlement; that there was no collusion between the probate judge and said Davidson as to the time when said settlement should be filed, or as to its examination and approval. The court finds that said settlement was duly approved.
“2. The court further finds that within the time allowed by law the plaintiffs here, who were the parties desiring to object to said final settlement, filed their*124 affidavit for appeal from the judgment of the said probate court and also gave their appeal bond as required by law, and that thereupon the said final settlement and proceedings in connection therewith were by the probate court transferred and sent to the circuit court of Butler county, Missouri; that said transcript was filed in the said court on the seventh day of July, 1890; that said cause on appeal remained of record in the circuit court from the date of the filing of said transcript until August, 1891, when the said appeal was voluntarily dismissed by the plaintiffs; that at one term of the said court this cause was continued by agreement of the parties; that depositions were taken, in said cause and preparations were made for trial thereof; motions filed from time to time to suppress depositions; which motions were acted on by the circuit court in said cause; that no attack was made upon the jurisdiction of the Butler county circuit court, in said cause, and no question raised as to such jurisdiction; and the court finds from the evidence that said court had jurisdiction of said cause.”
The court then found as conclusions of law “that under the finding of facts numbered 1, when the final settlement was approved by the probate court, it had the full force and effect of a judgment, and could only be set aside for fraud in the procurement of said judgment; and being a judgment of the probate court, it is entitled to the same favorable presumptions and intendments as are accorded the orders and judgments of the circuit court; a'nd the court finds that there was no fraud on the part of Davidson or the probate judge in the matter of the procurement of the said judgment of the final settlement.”
And under finding of facts number 2: “That the plaintiffs had in said probate court a full and adequate remedy for a proceeding at law to correct all
Plaintiffs’ bill was then dismissed and judgment rendered against them for costs. They .then filed their motion for a new trial and the same being overruled they appealed.
No objection is taken in the motion for a new trial to the finding of facts, or to the failure of the court to find on any allegation in the petition with respect to any specific matter, so there is nothing presented by the record for. re view, save and except the law as ruled by the court upon the facts as found.
While the court correctly declared the law to be that the approval by the probate court of the final settlement of Davidson was in law a final judgment and entitled to the same favorable presumptions which are accorded to the judgments of all courts of record which can only be set aside for fraud in their procurement, it does not seem to us that the facts, as found, justified the conclusion that there was no fraud upon the part of Davidson or the probate judge with respect to the approval of the final settlement.
When the attorney for plaintiffs informed the probate judge that he desired to contest the settlement of Davidson prior to the filing thereof, and was informed by said judge that when the settlement was filed, if it was fair on its face he would approve it and the heirs could then appeal from his judgment, it showed a determination upon his part to approve it whether right or wrong in fact, and although it may have been burdened with fraudulent debits and credits. He not only advised plaintiffs’ attorney of his purpose
Nor are we prepared to concur in the views of the trial court as to the law under the finding of facts numbered 2. The voluntary dismissal of the appeal from the probate to the circuit court is no bar to this proceeding. Its legal effect is nothing more nor less than a voluntary nonsuit, which is not a bar to another suit on the same cause of action. To be a bar to another action there must be judgment on the merits. It then becomes res adjudícala. Ellington v. Crockett, 13 Mo. 72. In Wells v. Moore, 49 Mo. 229, it is said that “where the former adjudication was not on the merits, it forms no bar to another action.” The merits of the case were in no way passed upon by the probate court, hence no bar to this action.
Nor is the fact that plaintiffs may have had adequate remedy at law, by the prosecution of their appeal from the probate to the circuit court, any barrier to the prosecution of this suit. In Stewart v. Caldwell, 54 Mo. 536, Sherwood, J., in delivering the opinion of the court, said: “But fraud belongs to the original jurisdiction, always exercised by a court of equity, and constitutes its most ancient foundation; and such
The judgment is reversed, and the cause remanded with directions to the trial court to proceed with the trial of the cause upon its merits.