156 Mo. App. 153 | Mo. Ct. App. | 1911
This is a proceeding for the allowance and classification of a demand against the estate of L. R. Wilson, deceased. It originated in the probate court of the city of St. Louis on March 5, 1906, through plaintiff’s exhibiting a judgment against Wilson’s estate, which it had obtained against him during his lifetime. Because E. R. Hawkins, a member of the plaintiff partnership was dead, the probate court, on the motion of the public administrator of the city of St. Louis, substituted him as claimant in lieu of the co-partnership', as though such partnership was dissolved by the death of Hawkins and the public administrator had succeeded to its rights touching the judgment theretofore exhibited against the estate of Wilson. By this order or judgment, substituting the public administrator for plaintiff as claimant with respect to the demand evinced by the judgment in favor of E. R. Hawkins & Company, the probate court, of course, effectually denied the right to further proceed with respect to that matter and pláintiff prosecuted' an appeal therefrom to the circuit court. The circuit court, after hearing the case, dismissed the appeal, on the theory the co-partnership of E. R. Hawkins & Company was neither a creditor nor interested party within the purview of the statute pertaining to appeals from the probate court, and from this judgment plaintiff prosecutes an appeal to this court.
From what has been said, it appears the question for decision relates to the right of plaintiff to prose
The facts out of which the controversy arose are somewhat complicated and to the end of a complete understanding of the whole matter, together with the principles of law invoked thereby, it will be essential to state them in extenso.
Lemuel R. Wilson was a resident of the city of St. Louis, where he departed this life, leaving an estate, of which defendant Stephen Quinette was appointed the administrator by the probate court of such city, and at the time here involved Wilson’s estate was in the course of administration in that court. During his lifetime, on March 10, 1896, the co-partnership of E. R. Hawkins & Company recovered a judgment for $698.70 against Wilson in the circuit court of the city of St. Louis, and on March 5, 1906, such judgment was filed and exhibited by it as a demand against his estate in the probate court. The co-partnership of E. R. Hawkins & Company was a non-resident of this state, engaged in trading in the woolen business at Philadelphia, Pennsylvania. E. R. Hawinks having died at Philadelphia February 6, 1901, the public administrator of the city of St. Louis assumed that the partnership, of which he was a member, no longer continued and discovering this asset, the judgment of $698.70 against Wilson exhibited in the probate court as the property of such partnership', immediately filed his notice under the statute and pro
It therefore appears that notwithstanding the prior death of Hawkins, plaintiff partnership was a going concern at the time it exhibited the judgment for allowance against Wilson’s estate March 5, 1906, and this being true, it is obvious the public administrator obtained no right whatever to administer upon the asset evinced by that judgment, for it was the property of the existing partnership of E. R. Hawkins & Company, who had succeeded thereto together with the other assets of the old firm. We believe the public administrator recognized this fact and acted accordingly, for it appears that he thereafter, on January 12, 1907, refiled his notice taking charge of the individual estate of E. R. Hawkins, deceased, under the will of Hawkins and asserted anew his authority as public administrator over the judgment as administrator of the partnership effects in Missouri of E. R. Hawkins & Company. The will of Hawkins haying been exhibited in the probate court in the interim, it be
It appears that in the autumn of 1906 a composition in bankruptcy as to the debts of E. R. Hawkins & Company was effected through the agency of McEvoy and Weed, surviving partners, acting'for themselves and the partnership, with power of attorney from the executors' of the estate of E, R. Hawkins, deceased, and the beneficiaries under the will of Hawkins, through an arrangement effected by them in writing for all interests in the bankrupt partnership. It was agreed that Raymond & Gordon would furnish the money to compensate the composition of the partnership debts at 66 2-3 cents on the dollar and in consideration therefor take over by assignment all of the property and effects of E. R. Hawkins & Company, together with the right to use the partnership name for a period not exceeding five years. Raymond & Gordon advanced the money in accordance with
But it is argued the bankruptcy proceeding is without influence in the case and wholly insufficient, together with the assignment above mentioned, to transmit the right of the individual estate of Hawkins to Raymond & Gordon, for the reason Hawkins’ estate was not mentioned in the petition for a voluntary bankruptcy. It is true the surviving partners only, McEvoy and Weed, signed and presented that petition, but they did so, according ' to the uncontradicted proof, with the understanding of all, that Hawkins’ estate was a party thereto. At any rate, under the partnership contract, the firm entity' continued after the death of Hawkins, though his estate was interested therein to the identical extent as was Hawkins in his lifetime, and the surviving partners con
From what has been said, it is obvious that at no time was the asset involved here a subject of administra
But it is argued that though the administrator had no right, the appeal should be dismissed for the reason the co-partnership of E. R. Hawkins & Company, consisting of his individual estate and the surviving members of that firm, were not competent to prosecute an appeal from the probate court under our statute. On this question, it should be said that by its order and judgment substituting the public administrator for plaintiff with respect to the demand against Wilson’s estate the court effectually denied the right of the claimant to either prosecute or recover on its demand. Such was a final decision as to that matter. Hanley v. Holton, 120 Mo. App. 393, 96 S. W. 691. At the time the demand was originally filed, on March 5, 1906, plaintiff was an existing going partnership and as such prima facie a creditor of Wilson’s estate, for it owned the judgment asset. Our statute authorizing appeals from the probate court to the circuit court, section 289, Revised Statutes 1909, authorizes an appeal on all demands against an estate exceeding ten dollars and by the concluding lines of the section it is provided the right of appeal shall extend to any creditor or other person having an interest in the estate under administration. It is argued that though E. R. Hawkins & Company was a creditor of the Wilson estate at the time the demand was filed, on March 5, 1906, it no longer occupied that status at the time the appeal was granted, for the reason that, through the subsequent bankruptcy and the assignment of this judgment to Raymond & Gordon and their assignment
“When an interest is transferred in any action now pending, or hereafter to be brought, other than that occasioned by death, marriage or other disability of a party, the action shall be continued in the name of the original party, if the party to whom the transfer is made will indemnify the party in whose name the suit is to be continued against all costs and damages that may be occasioned thereby, or the court may allow the person to whom the transfer is made to be substituted in the action; and in all such cases, the party to whom the transfer is made shall be required by the court, upon application of the party who made the transfer, either to give such indemnity or to cause himself to be substituted in the action, and upon his omission to do so, the court shall order the suit to be dismissed.”
From this, it appears as no move was made to substitute the real owner of the judgment as claimant or plaintiff, the proceeding was properly continued in the-name of the original party at least until the transferee had declined to give the indemnity contemplated by the statute, and this was a right which plaintiffs might waive, if they chose so to do, as they did. It does not appear that Raymond & Gordon or the United Mills Company either sought to be substituted as plaintiff or were required to give the indemnity and refused to do so, but the matter proceeded in the name of the original claimants. It is insisted the statute quoted is without influence as to proceedings in the probate court and applies solely to actions in the circuit court, for it is said to be parcel of the code of civil procedure. We are not
The judgment should be reversed and the cause remanded with directions to the circuit court to remand, the same to the probate court for such further proceedings as are competent and proper, not inconsistent with the views expressed in this opinion. It is so ordered.