Crow v. Weidner, 36 Mo. 412

Crow v. Weidner

36 Mo. 412 | Mo. | 1865

Lead Opinion

Holmes, Judge,

delivered the opinion of the court.

The defendant, as the surviving partner of the firm of Weidner Baare, gave bond and took charge of the partnership effects of the firm, for the purpose of closing up the affairs of the partnership, in accordance with the statute, and made a final settlement with the probate court of St. Charles county. In that settlement, he was allowed credits on his inventory, first, for a debt due by Baare to the firm at the time of his decease, and for a debt due by himself to the firm at the same time, both appearing to have been then individually insolvent; and, second, for all moneys made on executions on debts of the firm against the individual property of the survivor, or on garnishments of debts due the *416firm ; and, third, for all uncollected and unavailable demands which had been inventoried as partnership effects; and, fourth, for commissions and attorney’s fees.

The plaintiff appeared at the settlement, and objected to the first credit allowed, and insisted further that his account was objectionable for the reason that in allowing and paying off the debts of the firm out of the partnership effects in his hands, he had paid them all in full, when he should have classed them and paid them only pro rata, as required by the 63d section of Art. I. of the Administration Act. (R. C. 1855, p. 12’5.) Neither of these objections can be' sustained. The surviving partner was accountable only for the effects which actually came into his hands under his bond and charge as such surviving partner; and the 63d section, above referred to, had no application to him, but only to the administrator of the deceased party’s estate, in respect to the excess of funds which he might receive from the surviving partner upon such settlement. Under this act the powers of a surviving partner, in closing up the affairs of the partnership, are not changed or restricted, otherwise than as he is required to give bond and security that he will use due diligence and fidelity, and pay over the excess of funds in his hands that remains after satisfying the partnership debts and the costs and expenses of his administration ; but for any misconduct or neglect, there is a remedy on his bond. (Green’s Adm’r v. Virden, 22 Mo. 511.)

His settlements with the probate court are of the nature of a judicial proceeding, and, like other settlements of the same nature, as those of administrators and guardians, they are judgments from which an appeal may be taken. Such an appeal comes within the language and intent of the act; (§ 65 of Art. I., and § 9 of Art. VIII.;) but the appeal must be taken to the Circuit Court. (§ 1 of Art. VIII.) By these provisions of the act, the right of appeal is placed on the same footing with an appeal from a settlement of an administrator. (§ 1, clause 2, of Art. VIII.)

*417It is contended on the part of the defendant, that a writ of error does not lie in such case from this court to the probate court. It was decided in Matson v. Dickerson (3 Mo. 339), that a writ of error would not lie from the Circuit Court to the county court, in matters of probate jurisdiction, where the statute only gave an appeal. Writs of error from the Supreme Court, upon any final judgment or decision of a Circuit Court, are in all cases writs of right. (R. C. 1855, p. 1294, § 1.) The “Act concerning administrators” only allows an appeal to the Circuit Court, and there is no statute which makes any provision for a writ of error directly to this court in such cases. We are of the opinion that the writ of error does not lie to this court.

This necessarily disposes of the case as it is now presented here; but we may take occasion to observe, that we have not discovered any material error in the action of the court below, either in making the settlement or in giving or refusing instructions.

The writ of error will be dismissed. The other judges concur.

Rehearing

Opinion of the Court on motion for a re-hearing. Judgment below affirmed. — Holmes, J.

The plaintiff’s counsel has filed a motion for a re hearing in this cause, for the reason that an appeal or writ of error is given by special statute from the probate court of St. Charles county to the Supreme Court, and also for the reason that the court erred in the construction given to the 63d section of Art. I. of the “Act concerning administrators.” (R. C. 1855, p. 125.)

The act of December 31,1859, amendatory of “An act to establish the nineteenth judicial circuit and for other purposes,” approved March 9, 1859, (Adjourned Sess. Acts of 1859-60, p. 13, §§ 1, 3,) creates a court of record to be called the St. Charles Probate Court, and provides for an appeal or writ of error in all cases of final judgment or decision of said court directly to the Supreme Court. Our *418attention was not called to this act on the hearing of the cause, and the existence of such an act was overlooked by the court.

We see no reason for changing the opinion heretofore given upon the construction and application of the 63d section of Art. I. of the “Act concerning administrators,” above mentioned.

For the error in overlooking the special act in relation to the St. Charles Probate Court, the judgment of dismissal of the writ of error will be set aside, and, for the reasons expressed in the opinion heretofore filed in this case, judgment will be entered affirming the judgment of the court below.

The other judges concur.