158 Mo. 515 | Mo. | 1900
This cause was certified to this court by the Kansas City Court of Appeals, because one of the judges of that court was of opinion that the decision of that court in this case is in conflict with the decision of this court in Kelly v. Thuey, 143 Mo. l. c. 437-8;
Under section 6 of the amendment of 1884 to article 6 of the Constitution, it is the duty of this court, under such circumstances, to “rehear and determine said cause or proceeding as in case of jurisdiction obtained by ordinary appellate process.”
The case is this: Norton Blake formerly lived in Buchanan county. He died at the residence of his son in Louisiana, on the 26th of March, 1891, but was in legal contemplation a resident of Buchanan county, Missouri, at that time. [Bealey v. Blake, 153 Mo. l. c. 674.] On the 28th of May, 1891, letters of administration upon his Estate were granted by the probate court of Brown county, Kansas, to Kichard Huxtable. The plaintiff herein, who was Blake’s son-in-law, resided in that county, and had in possession, as
“1. Because there was no mutuality between the respondent’s claim against the estate of Norton Blake and the administrator’s claim against this defendant, on account of the alleged collection by the latter of the said four notes long after the death of Norton Blake.
“2. Because the administration of the estate of Norton Blake was purely local to Missouri, and was confined to the chattels having -a particular situs here, and, therefore, did not include a debt against this respondent, who was a citizen-of Kansas, resident there, and-which debt, therefore, had a situs in Kansas.
“3. Because the entire item sounded in tort and could not be maintained as a set off.”
The Kansas City Court of Appeals held that the right of the defendant to set off the amount of the notes so collected by the plaintiff against the demand of the plaintiff for the balance due on the $750 note, was before that court on the first appeal, and was passed upon and adjudicated then, and that such decision was the law of the case as to the trial court on the t ?ial anew, and was not open to discussion when the case can e the second time before the Court of Appeals, and as the trial court had not followed the decision of the Court of Appeals, its judgment was erroneous, and hence the judgment was reversed and the cause remanded. The cause was then transferred to this court for the reason first’ herein stated.
I.
The right of the defendant to set off the four notes against the plaintiff’s demand was distinctly denied by the plaintiff, and the claim was made, by the plaintiff, on the first appeal, that the judgment was erroneous because the trial
When the case came before the Court of Appeals the second time, it was entirely within the power of that court to hear or refuse to hear argument again upon the propositions decided by it when the case was first there. The rule of siare decisis is not an iron-clad rule, but it is a rule founded upon reason and experience. The rule, like all rules, has its exceptions, one of which' is that an appellate court will review and reverse its former decision, even in the same case, where it is- satisfied
We might stop here and refuse to interfere with the decision of the Kansas City Court of Appeals in this case, were it not for the mandate of the Constitution, which requires this court, in cases coming here upon certificate of this kind, to rehear and determine the case as in cases of jurisdiction obtained by ordinary appellate process.
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The plaintiff, by remittitur, has taken away the manifest error of the circuit court in excluding the defendant’s counterclaim for rents collected by the plaintiff before Blake’s death. This leaves for determination only'the defendant’s counter
There is no substantial conflict in the evidence preserved in this record that the plaintiff, at and before Blake’s death, had these notes in his possession as Blake’s agent, to collect them, and that he did collect $1,684.85 on account thereof after Blake’s death. Instead of turning over these assets of the estate to the administrator upon the termination of his agency by Blake’s death, as he should have done, the plaintiff turned the notes into cash and kept the cash. He collected $511.92 of the $750 Blake owed him, from the Kansas administrator, and now seeks to collect the balance Blake owed him from the Missouri administrator, without accounting to any one for the $1,684.85 he owes Blake’s estate. His position is that there is no mutuality between his claim against the estate and the estate’s claim against him; that the Missouri administration is purely local and does not include the debt the plaintiff owes the estate, and that the situs of that debt is the residence of the plaintiff in Kansas, and that what he owes the estate sounds in tort which can not be set off against the debt the estate owes him.
If these contentions are well founded in law the plaintiff must be allowed to collect his debt against the estate, and go free of paying what he owes the estate, so far as the courts of this State are concerned.
In the case of Lietman’s Exr. v. Lietman, 149 Mo. 112, this court held that the debt due the Missouri estate of the deceased by an insolvent non-resident legatee should be set off against a legacy due such legatee. And there is no distinction in principle between the remedy applied fof the collection of the debt in that case and the remedy which should be applied to the collection of the debt in this case. There is as much mutuality in this case as there was in that. In each case there was a mutual demand. The Kansas City Court of
Woerner’s American Law of Administration (2 Ed.), sec. 398, vol. 2, states the law as follows:
“The policy of the law, requiring the speedy and least expensive settlement of the estate of deceased persons, favors the tidal of all matters in issue between the administrator and other persons interested in the estate in the simplest, most direct manner. The affidavit required of creditors before their claims can be entertained in the probate court compels them to disclose the existence of any set off or counterclaim, and the amount for which they can obtain allowance is limited to the difference between the amount claimed and any sum in which they may be indebted to the estate. Hence the judgment can be for the difference only, if there had been mutual dealings between the creditors and the decedent; and this whether the estate is solvent or insolvent, whether the debts are payable simultaneously, or the one in praesenti and the other in futuro, or whether there be other claims superior in dignity thereby affected or not; even if the debt to the estate would not have been the proper subject of set off during the lifetime of the parties. Administrators, therefore, should although not bound by law to do so in all the States, exhibit or plead in set off any debt or liability of the claimant to the deceased against a claim presented for allowance against the estate.”
There can be no doubt that section 2050, Revised Statutes 1889, is broad enough to permit the counterclaim of the administrator against the plaintiff, for which an action of indebitatus assumpsit for money had and received would
The position of the plaintiff is untenable, and the decision of the Kansas City Court of Appeals on the first appeal of this case (70 Mo. App. l. c. 233) was correct in all its features. The Missouri administration is the principal administration, as Blake was a resident of Missouri. The Kansas administration was simply ancillary. The counterclaim is not based on tort. It is for money had and received.
It follows, without further elaboration, that the trial court erred; that. the defendant was entitled to recover against the plaintiff, not only for the rents collected before Blake’s death, which the plaintiff has conceded by entering a remittitur therefor, but also for the $1,684.85 with legal interest from December 14, 1895. The judgment of the circuit court is reversed and the cause remanded with directions to enter judgment for the plaintiff for $119 with six per cent interest from October 11, 1897, and for the defendant and against the plaintiff for $1,684.85, with six per cent interest from December 14, 1895, >and to deduct the amount of the judgment for the plaintiff from the amount of the judgment for the defendant, and to enter final judgment for the defendant and against the plaintiff for the difference so' ascertained.