201 Mo. App. 418 | Kan. Ct. App. | 1919
Lead Opinion
— On April 30, 1913, plaintiff brought suit in the circuit court of Jackson county, Missouri, against one described as JoJm Skinner. Summons was issued directing the sheriff of said county to summon John Skinner. Service was duly had by a deputy sheriff, his return reciting that he had executed the writ in said county by delivering a copy of said writ and the petition in said cause to the “within named defendant, John Skinner.”
The petition in that case alleged that plaintiff received personal injury by reason of the negligence of the defendant in permitting a sidewalk to become out of repair in front of his premises located at 1123 Oak Street, in Kansas City, Missouri; that by reason of said defective sidewalk plaintiff while walking over the same was caused to fall to her injury, and asked judgment in the sum of $5000. Defendant made default and on March 18, 1914, the court rendered judgment in favor of plaintiff and against defendant, “John Skinner” in the sum of $1000.
Sometime prior to the 20th day of May, 1915, William Floyd Skinner died and an administrator of his estate was appointed by the probate court of Jackson County, Missouri. The inventory of the estate showed that at the time of his- death deceased was the .owner of said property located at 1123 Oak Street. In May, 1915, ■ plaintiff presented to the probate court of Jackson County a transcript of said judgment in her favor and against John Skinner, seeking to have the
Thereafter plaintiff appealed to the circuit court of Jackson county, Missouri, where the case was tried by that court without the aid of a jury. No declaration of law or finding of fact was requested except one by the defendant to the effect that said judgment was not entitled to allowance or classification as a claim or judgment against the estate of William Floyd Skinner, which was refused by the court and the court thereupon rendered judgment in favor of plaintiff and against the estate. After taking the proper steps defendant has brought the case here.
In the court below plaintiff introduced evidence tending to prove that John Skinner and William Floyd Skinner were one and the same person and that the suit of Mamie Green v. John Skinner was instituted and the summons served upon William Floyd Skinner although he was designated in the petition and summons as John Skinner.
Defendant insists that his demurrer to the evidence should have been sustained and in this connection states:
“The probate court is a court of limited jurisdiction and has no jurisdiction which permits the classification of judgments rendered by other courts of record which require amendment and were not rendered by those courts in the ordinary course of proceedings. ’ ’
We have no doubt but that the probate court had jurisdiction to classify'this judgment against the estate of William Floyd Skinner providing it was established that John Skinner and William Floyd Skinner were one and the same person. Whether there was evidence to show such fact will be hereinafter discussed
“A name is a means of identity; but the change of the name or the application of a wrong name does not change the thing identified. It is not the name that is sued but the person to whom it is applied. Process served on a man by a wrong name is as really served on him as if it had been served on him by his right name, and if in such case he fails to appear, or appearing fail to object that he is sued by the wrong name, and judgment be rendered against him by such name, he is as much bound by the judgment as if it had been rendered against him by his right name. The use of the right name is every way preferable, since without it as a means of identification the evidence of the identity of the person sued may in process of time become lost; and hence the propriety of the amendment in this case; but so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purpose, as if the defendant had been sued by his right name.”
If one served with process in a wrong name desires to take advantage of the situation, he must appear and raise the question in the court where the suit is brought before judgment is rendered against him. Unless he does so his right to object to his being sued in a wrong name is waived. [Parry v. Woodson, supra; Lafayette Ins. Co. v. French, 18 Howard, 404.]
The functions that the probate court may perform are conferred by the Constitution and statutes, and, consequently, as the Constitution and statutes give no equity jurisdiction to the probate court, it may not proceed in equity cases. However, the Statute, section 4056, Revised Statutes 1909, confers jurisdiction upon the probate court “over all matters pertaining to probate business,” and, therefore, it is held that the probate court has jurisdiction in matters pertaining to
Section 197, Revised Statutes 1909, provides that a judgment may be obtained against an estate in “some court of record, in tbe ordinary course of proceeding” and may thereafter be established in the probate court against such estate. Defendant says that the judgment in the case at bar, being obtained against the deceased in his wrong or alias name, was not “in the ordinary course of proceedings.” This clause in the statute has no reference whatever to a judgment procured as was this one. The statute simply provides that the claimant may elect to -first go into a court of record and establish his claim against the estate there by the same kind of proceeding that he would pursue if the deceased had not died but was sued while living. This is the meaning of the quoted language of the statute.
It is defendant’s contention that the classification of a judgment was more or less ministerial on the part of the probate court, and that a proceeding to classify a judgment in that court does not contemplate a trial of fact such as is involved in a proceeding to show whether the party against whom and in whose name the judgment was actually rendered is the same as that of the deceased. There is no merit in this contention. The action of the probate court in classifying a judgment may involve a trial of fact and it is not a mere ministerial, clerical or nondescript act. [McFaul v. Haley, 166 Mo. 56, l. c. 68.] Of course, when
There was no necessity for any formal pleadings to be filed by plaintiff in the probate court alleging that William Floyd Skinner was known as John Skinner and that the John Skinner sued in the circuit court was the same person as William Floyd Skinner, the deceased. Section 206, Revised Statutes 1909, provides that the pro
Defendant makes the point that the only court in which the judgment could have been corrected was the circuit court, citing sections 1848, 1851, 2119 and 2120, Revised Statutes 1909, which confer power on the courts' to correct the name of a party either before or after judgment. Defendant says that he is unable to find a case in this State “holding that a probate court could correct and amend a judgment rendered in another court.” From this it is evident that defendant misconceives 'the purpose of this proceeding. No such thing is sought to be done. The matter attempted to be accomplished in this case is not to correct a judgment but to classify one that was really and in fact rendered against "William Floyd Skinner, although in the name of John Skinner, against the estate of William Floyd Skinner. While the plaintiff could have corrected the judgment in the circuit court by the proceeding provided by the section of the statute last mentioned, he was not required to do so in order to have a valid judgment against William Floyd Skinner or his estate. Said sections of the statute were enacted to alleviate the rigor of the common law which invalidated judgments for or against persons suing or sued in the wrong name and are for the benefit of the party holding a judgment against such persons suing or being sued. Ordinarily it is to the advantage of the
Defendant makes tbe point that there is no competent and credible evidence to show that John Skinner who was served by tbe deputy sheriff, was, as a matter of fact, William Floyd Skinner, tbe deceased. In Reid, Murdock & Co. v. Mercurio, 91 Mo. App. 673, it is held that it is proper to permit tbe introduction of parol evidence to indentify tbe particular individual upon whom tbe writ was served even though tbe two names are not idem sonans, and that to do so in no way tends to contradict or impeach the return of the officer. Tbe same is held in Lafayette Ins. Co. v. French, supra, 1. c. 409, and in Carmichael v. Vandebur and Hopkins, 50 Iowa, 651. In order to show that John Skinner, tbe party named in the summons, and tbe deceased, William Floyd Skinner, were one and tbe same person, plaintiff introduced a photograph which was identified by tbe witness Barker as that of tbe person called John, Floyd, Henry or William Skinner, who lived at 1123 Oak Street, in Kansas City, Missouri. This property was owned by tbe deceased. Tbe deputy sheriff who served tbe summons identified this picture as being a likeness of the person upon
The witness Barker testified that he was at Dick’s saloon a 12th and Locust Streets at the time John Skinner was served and that the deputy sheriff served the man who lived at 1123 Oak Street, known to the witness as John, Floyd, Henry and William Skinner.
No evidence was introduced by the defendant to show that the John Skinner who was served by the deputy sheriff was not the same person as William Floyd Skinner, the deceased, or that William Floyd Skinner did not' also go under the name of John Skinner during his lifetime. In fact, defendant introduced no evidence whatever. We think that under this testimony there was sufficient evidence from which the court could find that John Skinner who was served by the sheriff was the same person as William Floyd Skinner, the deceased. Plaintiff having shown these facts, made out a prima.-facie case and it was then incumbent upon the defendant to show that John Skinner who was served was not William Floyd Skinner, the deceased.
Defendant complains that the court permitted the introduction of hearsay testimony in order to show, at least in part, the identity of John Skinner and William Floyd Skinner. We have examined the objections made at the trial court and find that the matter was not presented to the trial court but that it is raised for the first time in this court. The objections to the testimony were that the evidence was ‘ ‘ incompetent, irrelevant and immaterial;” “I object to that;” “I move that be stricken out.” The last two objections were no objections at all. [Breen v. United Railways Co., 204 S. W. 521, and cases therein cited.] The objection “incompetent, irrelevant and immaterial” was not sufficient to raise the question that the evidence objected
“Ordinarily, the objection that evidence is ‘irrelevant and immaterial’ does not constitute any objection since it does not furnish any basis or ground of objection, but this is so in those instances where the objection does not give the court any reason for exclusion and it is not clear whether the testimony is relevant or material.”
The evidence now objected to as being hearsay was very material to the issues in the case; it went to the question as to whether John Skinner and William Floyd Skinner were one and the same person. Therefore we must hold that the objection made in the trial court was not sufficient to raise the point now made.
While the point is not raised in the briefs, we find upon an examination of the record that the judgment in this case is absolutely void. The judgment recites that the court “finds the issues for the plaintiff and against the defendant and assesses plaintiff’s damages at the sum of twelve hundred and twenty dollars ($1220),” and that “plaintiff have and recover of and from the said defendant the said sum of twelve hundred and twenty dollars ($1220);” and “it is further ordered by the court that this judgment be certified” to the probate court for classification against the estate of William Floyd Skinner.
Under the pleadings the only judgment that the court could render in favor of plaintiff was one ordering the classification of the judgment filed in the probate court and the court had no jurisdiction whatever under the pleadings to render an entirely new judgment and order it classified. [Charles v. White, 2:14 Mo. 187; Wilson v. Darrow, 223 Mo. 520, l. c. 531; Chandler v. Railroad, 251 Mo. 592, l. c. 599.] The judgment now rendered should not be a judgment in favor of the plaintiff and against the defendant for so much money. The judgment should not he that plaintiff have and recover a sum 'of money or any sum, but that the judgment, standing in the name of John Skinner,
The judgment is reversed and the cause remanded.
Dissenting Opinion
(dissenting) — It may be that the probate court has jurisdiction to take the affirmative step or action plaintiff asked to be taken herein; and yet it is difficult for me to escape the conviction that, as to the estate and those interested therein, the matter sought to be adjudicated, is, in effect, a reformation of the judgment in the circuit court so as to make it a judgment against William Floyd Skinner instead of what it purports to be, a judgment against John Skinner. This is, in reality, what is sought to be done, no matter what we call it nor the terms we may use in describing it. And this affirmation step must first be taken, for without it there is no authority for classifying a judgment against John Skinner as a demand against the estate of William Floyd Skinner, deceased. And I very gravely question the wisdom or the validity of the course whereby a judgment appearing upon the records of the circuit court as against one man can in another and a different court, the court of probate, be declared to be, in fact and in reality, a judgment against another man who is now dead. It would seem
