68 Mo. App. 612 | Mo. Ct. App. | 1897
Ferry, the curator who succeeded McGowan, objected to the court’s action in permitting the amended accounts to be filed; and when he was overruled in this, filed exceptions to the amended statement, and in effect asked the court to charge McGowan with the $1,900 as cash according to the inventory, etc., and also objected to certain fees for services as curator. The circuit court heard the evidence; and after an examination of the amended accounts, allowed the same as presented by McGowan, except only as to the amount claimed for his services. In accordance with the court’s finding the curator had paid out a small amount more than he had received. From this judgment Ferry, the present curator, appealed to this court.
We think there is no merit in either contention. When the transcript and papers in appeal from the probate court are filed in the circuit court, the latter becomes possessed of the cause as if it originated there; and it is its duty “to proceed to hear, try and determine the same anew, without regarding any error, defect, or other imperfection in the proceedings of the probate court.” Secs. 292 and 5335, R. S. 1889. And the circuit court, being so possessed of the cause, it is made its duty to “proceed to examine the accounts of such guardian or curator, correct all errors therein, if any there be, and make a final settlement with such guardian or curator.” Sec. 5329, R. S. 1889. The ■ duty of the court thus prescribed is to examine the entire accounts of the retiring curator and 11 to correct all errors therein,” whether such corrections be for or against the curator. Indeed, it would make no difference whether the curator had made a correct statement or not; the court might revise and adjust the debits and credits and itself declare the state of the account, and it might then require the curator to amend the statement or account to conform to the right and justice of the matter.' If then the court may so require, then surely there can be no error in permitting the curator to so amend his statement as to conform to the finding and judgment of the court. Neither does the amendment in such a case materially change the nature of the controversy between the parties. Roeder v. Shryock, 61 Mo. App. 485.
Neither was McGowan estopped by his conduct from correcting this error, whereby he had been by mistake charged with money he had not in fact collec
The judgment was .for the right party and will be affirmed.