175 Mo. 79 | Mo. | 1903
— This is an appeal by defendants from a judgment of the St. Louis City Circuit Court in favor of the plaintiff for the sum of $1,204.68.
The petition, omitting caption, is as follows:
“Plaintiff states that.it is a municipal corporation, duly organized, created and existing under and by vir
To the petition, the defendant guardian filed demurrer as follows:
“Now comes the above named defendant, Wm. C. Richardson, public administrator and ex-officio public guardian and curator of the city of St. Louis, and as such in charge of the person and estate of Mary Hollrah, as her guardian, and demurs to the petition of plaintiff
The demurrer was overruled, and thereupon he filed answer denying the allegation of the petition. The ■case was tried by the court without a jury, finding and .judgment for the plaintiff; judgment ordered certified to the probate court, and after unsuccessful motions for new trial and in arrest of judgment the guardian took ■an appeal to the St. Louis Court of Appeals, from which the case was transferred to this court, to which the appeal should have been taken.
Two grounds are urged for the reversal of the .judgment:
First. That the circuit court did not have- juris■diction of the action; and
Second. That the petition did not state facts sufficient to constitute a cause of action.
(1) This is a common-law action for the value of necessaries furnished an insane person; of which, it is conceded, that the circuit court had jurisdiction, unless ■it was divested of such jurisdiction by the provisions of an act of the General Assembly entitled “An Act to .amend chapter 86 of the Revised Statutes of the State of Missouri, 1889, entitled ‘Insane persons,’ by adding three new sections,, to be known as sections 5529a and ■5529b and section 5529c.” “Approved March 21, Í899” (Laws 1899, p. 227), and carried into the Revision of that year as sections 3668, 3669 and 3670.
That act is as follows:
“Section 1. Section 5529a. All demands against the estate of an insane person shall be presented to the probate court, and notice of intention to present such -demand shall be served upon the guardian'with a copy of the instrument of writing, or account upon which said •demand is founded, and such demand shall be con
“Sec. 2. Section 5529b. If there should not be sufficient assets of the estate of such insane person to pay all demands allowed in full, the probate court shall make an order prorating said assets equally among the holders of said allowed demands.
“[Sec. 2a.] Section 5529c. It shall be the duty of such guardian within thirty days after his appointment to give notice by publication in some newspaper printed and published in the county in which such appointment -tfras made, and if no paper is published in such county therein, a paper published in any other-county in the State nearest to the county where such appointment was made for three weeks that letters of guardianship had been granted to him, and requiring all persons having claims against the estate of such insane person to exhibit them for allowance before the probate court granting said letters of guardianship, within two years from the date of said publication, or they shall be forever barred.
‘ ‘ Sec. 8. All acts or parts of acts inconsistent herewith are hereby repealed. ’ ’
It is well-settled law, “That, if a statute gives a remedy in the affirmative, without containing any express or implied negative, for a matter which was actionable at common law, this does not take away the common-law remedy, but the party may still sue at common law, as well as upon the statute. In such cases the-statute remedy will be regarded as' merely cumulative. But, where a new right or the means of acquiring it are given, and an adequate remedy for violating it is given in the same statute, then the injured parties are con
In order that this act should have the effect contended for by counsel for defendant, of ousting the jurisdiction of the circuit court and vesting the same in the probate court, it must afford not only a remedy, but an adequate remedy, and that remedy must be exclusive. It fills none of these requirements.' The probate court is a court of limited jurisdiction, - possesses only such power as is conferred upon it by statute, and can exercise its jurisdiction only in the manner, prescribed by statute. This act does not confer upon the probate court power to hear, determine and afford adequate relief to a suitor, in an action in that court against an insane person. Nor does it provide any method of procedure for that purpose. In fact, instead of providing an exclusive remedy in that court, it provides none at all for such suitor. It is simply a limitation upon his demand, and that limitation does not apply to cases like the one in hand, but is confined to demands against an insane person accruing before the granting of letters of guardianship. There is nothing in this- contention.
(2) It is next contended that under the ruling in Montgomery County v. Gupton, 139 Mo. 303, no recovery can be had in this case if the necessaries were furnished to Mrs. Hollrah as an insane- pauper, and that the petition fails to state a cause of action in that it does not negative that fact. This proposition answers itself. If such was the fact, it was matter of defense, and should have been so pleaded by the guardian.
The judgment of the circuit court is affirmed.