71 Mo. 152 | Mo. | 1879
Lead Opinion
This was a proceeding under section 67, page 81, 1 Wagner’s Statutes, originating in the probate court of DeKalb county. One Weatherby, as public administrator, had formerly in his charge the estate of Hardwick. He failed, on ceasing to act in that capacity, to deliver to his successor, Brown, the assets of the estate, and the latter, therefore, issued a notice to Weatherby, and his official sureties, informing them that he, at the next term, would move for a judgment against them, for the rendition of the assets of the estate to him, the said administrator de bonis non. Three of the sureties were, hut the former public administrator was not, served with notice. The sureties who were served appeared and made defense. The circuit court, on appeal had, found that Weatherby had in his hands unaccounted for, $2,040.10 belonging to said estate, and gave judgment against both the former public administrator and bis sureties, for that sum.
I.
The section being considered evidently contemplates the personal presence of the late administrator in order that he may obey the order of the court and deliver to his successor the assets of the estate. He cannot be deemed disobedient to the order of the court, unless notified that such an order will be made, and opportunity be thus afforded him to either yield obedience to that order, or else show lawful excuse, why the order should not go., And the liability of the sureties is dependent upon that of their principal; if he is not liable in consequence of no assets of the estate being in his hands, or because he has already, without being so ordered, delivered such assets to his successor, then they are not liable. In order that it may be adjudicated whether he be.thus liable, it is of first necessity that opportunity be given him, touching the things alleged against him. In illustration of this the case of Caldwell v. Lockridge, 9 Mo. 362, may be cited. There the'administrator having given notice, and made final séttlement, was discharged. After such discharge and in the absence of the administrator, but before the close of the term, the matter of the settlement was opened, and a different settlement was made, and held, that such settlement thus made was a nullity. This ruling evidently proceeds upon the theory that notice is a conspicuous and indispensable element of jurisdiction, and that the principle is applicable as well to administration proceedings as to any other
If Weatherby had, conformably to the provisions of section 47 of the same chapter, given notice, of his intended resignation, and of making final settlement, and at such settlement, the amount of money in his hands, as public administrator, had been computed, ascertained and declared, perhaps the present proceeding against his sureties would not be objectionable, for the sureties would have been answerable for the ascertained default — a default computed while the public administrator was present and the jurisdiction of the court over him had not ceased. Here, however, the record discloses a different case — a case for which the statute has provided two remedies — one summary, to ■which we have been adverting — the other consisting in a suit on the bond; in which suit, by express statutory permission, one or more of the obligors might be held liable for any default or breach of the conditions of the official bond. In a word, we hold that, under the provisions of section 67, you cannot render a judgment against the sureties and their principal, when that principal has not been summoned, and when, as here, no steps were taken while the administrator remained in office, to have the amount of money in his hands judicially ascertained, and an rrder for its rendition made while the administrator was before the court. Perhaps service may yet be had on the former public administrator. If not, resort must be had to his bond.
II.
Rehearing
On Rehearing.
Our former opinion as to the chief point involved in this case was based upon the failure to serve Weatherby, the 'first administrator, with notice. Since delivering that opinion, however, our attention has been called to the overlooked fact that, though Weatherby was not served with notice, and did not appear in the probate court, yet that the record shows his appearance in the circuit court when the case went there on appeal, for trial de novo. This recital of the record, which must be regarded as true, obviates any objections heretofore taken because of non-service of notice on the administrator, or of his non-appearance in the probate court, and results in the affirmance of the judgment.