59 Mo. 48 | Mo. | 1875
delivered the opinion of the court.
In 1866 the plaintiff, Brooks, had a claim probated in the County Court of Dent County, against the estate of S. Dougherty, deceased. Six years thereafter the administrator de bonis non tiled his motion in the Probate Court of that county, (probate jurisdiction having been transferred from the County Court to that court) to set aside the judgment of allowance, on the grouuds that it had been rendered without any notice to the administrator and without his waiving notice,
This entry which embraces and precedes the entry nunc pro tunc, among others, contains the recital, that the matters pertaining-to the motion were “ submitted to the court on testimony and argument.” What that testimony was we are left to conjecture.. It may have consisted of memoranda gleaned from the minutes or docket of the court.
The administrator appealed to the Circuit Court, where the plaintiff introduced the nunc pro tunc entry already referred to, and parol evidence also, showing that notice was in fact given ; to the introduction of all which matters the defendant objected, on the ground that the acts of the County Court could not be proved by parol evidence, but could be established alone by its records.
The defendant introduced no testimony showing that notice was not given, but contented himself with the introduction of the original order of allowance, which did not in any manner recite that notice had been either given or,waived. The Circuit Court affirmed the judgment of the Probate Court, and entered judgment against him, as if he were acting in an individual instead of a fiduciary capacity.
There are three ways by which notice is served on an administrator or such service is waived : First, by serving him with a copy of the notice "containing,” etc. Second, by his appearing in court and waiving the service of such notice. Third, by his waiving service by writing. (Wagn. Stat., 104, §§ 15, 17.)
It is obvious that it would be more in accordance with technical precision, that in cases of this sort the record should recite notice given or notice waived; but it is equally obvious, that those to whom are committed the exercise of
The case of Bryan vs. Mundy’s Adm’r, (14 Mo., 459,) is confidently relied Oil by defendant as being in point, because of upholding the doctrine that a judgment of a similar nature to the one under discussion may be, set aside-on parol proof of no notice What the form of that judgment was we are not informed, nor the reasons which were urged Units being set aside. The doctrine of that case has been yery often doubted, and. it. would perhaps be scarcely held for law at this time.
The decision, however, in that ease it is not necessary to overrule in order to decide the one at bay correctly; for the judgment of the Circuit Court may be upheld upon either of the following hypothesis: First. That the Probate Court had no control over the judgments of the County Court and could not, therefore, set them aside. Second. That having such control, it had full power and authority upon proper evidence, and something of record whereby to amend, to make the entry which it saw fit to have entered ; because it cannot with any show of reason be urged, that the Probate Court could, as the successor and transferree, as it were, of the powers and jurisdiction of the County Court, set aside and vacate the judgments of the latter, and still at the same time be powerless to make in furtherance of justice and upon suitable evidence, entries conformable to the actual facts. And we will not assume, in the absence of aught in the record to the contrary, that the action of the Probate Court was based upon any other than evidence of a perfectly legitimate and-sufficient character.
But we are -not prepared to admit, that, even if the .original entry of the judgment of allowance stood alone upon the records of the County Court, unsupported in any way by the subsequent action .of the Probate Court, the motion of the defendant ought to have prevailed. Although there is
For these reasons the judgment of the court beioW will he affirmed; but this affirmance will only extend to the usual judgment against an administrator; the residue of the judgment which authorizes the issuance of an execution against him, will be reversed.