Crohn v. Modern Woodmen of America

145 Mo. App. 158 | Mo. Ct. App. | 1910

ELLISON, J.

Plaintiff alleges that he is the curator of the estate of Ida Muench, who was so afflicted 'with insanity as not to be able “to transact business or to protect herself in the ordinary affairs of life.” That he was duly appointed to such curatorship by the probate court of Jackson county. He then further alleges that defendant issued to Berthold Prank Muench a benefit certificate of insurance in the sum of two thousand dollars, payable at his death to said Ida, who was his wife. Refusal of payment is then alleged and judgment is asked for the amount. Plaintiff prevailed in the trial court and defendant in due time, appealed.

It is first insisted that the judgment of the probate court of Jackson county appointing plaintiff to the curatorship of the property of Ida Muench, is void on its face and that therefore it may be attacked in a collateral proceeding. We will concede that as a proposition of law, and proceed to inquire as to the fact. The judgment recites the trial of the inquiry as to the mental condition of Ida Muench and that she had “had due and legal notice of this proceeding.” That she was not present, being in the State of New York, and that an attorney was appointed to represent her; that a trial wás had before a jury who returned a verdict that she was possessed of property and was of “unsound mind and incapable of managing her affairs.” That the court thereupon adjudged that she was a person of unsound mind and incapable of managing her affairs, and that she was possessed of property. Whereupon plaintiff, “the public administrator and ex officio public guardian and curator, be made and is hereby appointed curator of the estate of Ida Muench.”

In our opinion the judgment upon its face is valid. It is the result of a proceeding which is authorized by our statute where there is a non-resident insane person with property in this State. [R. S. 1899, sec. 3699.]

Though probate courts are of limited jurisdiction, yet in matters wherein their original jurisdiction is exclusive their judgments are entitled to all the presumptions which protect the judgments of courts of general jurisdiction. This has been the view taken by the appellate courts of the State ever since the case of Johnson v. Beazley, 65 Mo. 250. In Desloge v. Tucker, 196 Mo. 587, it is said that “If the attack were a collateral one it would be without merit, because, though probate courts are courts of limited jurisdiction, yet, moving in the orbit of their constitutional and statutory powers, in the administration of estates, they are not inferior courts, and the same liberal presumptions and intendments are indulged to sustain their proceedings and jurisdiction (attacked Collaterally) as are indulged in behalf of other courts of record.”

But defendant takes its objection further than the face of the judgment and asserts that the evidence of the proceeding in the probate court, of which the judgment was the result, shows there was no jurisdiction. Judging from what evidence is presented we do not agree to this. But passing that by, it brings us to a consideration of an objection made by plaintiff to the abstract presented by defendant. That objection is that not only is there no abstract of the entire evidence on the subject involving the inquiry as to the question of jurisdiction of the probate court, but there is no sufficient abstract of any part of the trial of the case. We find this to be true. The abstract sets out the pleadings and proper record entries, but as to the bill of exceptions we have what is really only the opinion of defendant’s attorney as to what the evidence was. By this mode the original matter in the bill of exceptions has been cut down at the rate of from about four pages to one. Defendant’s case on this appeal consists in an attack upon the sufficiency of the evidence. Every objection to the judgment is traceable to the evidence in the cause. It has been ruled time and again, in such case, that it was necessary to set out all of the evidence so that the judgment of the court might be had instead of that of the attorney making out the abstract. [Johnson v. Carrington, 120 Mo. 315; Goodson v. Ry. Co., 23 Mo. App. 76; Vandeventer v. Goss, 190 Mo. 239; Moore v. Harmes, 123 Mo. App. 34; Deering v. Hannah, 93 Mo. App. 618; Letts v. Ry. Co., 131 Mo. App. l. c. 281.] Plaintiff has printed and filed extracts from the original bill of exceptions and compared them with the abstract and has thereby demonstrated the incomplete and wholly insufficient showing of the evidence. When the attack of an appellant is -upon the insufficiency of the evidence we must have the evidence, entire, laid before us.

Defendant seeks to escape the points thus made against its abstract by the assertion that the authorities above cited were applicable to the rules of this court before June 30, 1908, when it says Rule 17 was amended in such way as to permit an abstract such as it has presented. It asserts that this court doubtless made the amendment to relieve the strictness required by the cases cited. Defendant is mistaken; we have not amended our rules on the date named, or at any other time.

The foregoing views make it unnecessary to say whether defendants has presented to us a bill of exceptions identified as required by Reno v. FitzJarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; State v. Weinegard, 168 Mo. 490; McCord Rubber Co. v. St. Joe Water Co., 181 Mo. 678; Clay v. Union Wholesale Pub. Co., 200 Mo. 665.

We therefore have nothing for consideration in addition to the foregoing, save the record proper, and an examination of, that satisfies ns that no error was committed, and the judgment is accordingly affirmed.

All concur.