194 Mo. App. 325 | Mo. Ct. App. | 1916
As originally instituted, this suit was brought against Celia Barton as executrix of the will of Henry Barton, deceased. It was alleged that, at the times mentioned in the petition, Henry Barton was a non-resident of the State of Missouri, and that his executrix, Celia Barton, is a non-resident; that, during the lifetime of Henry Barton, plaintiff rented to him certain land in the State of Texas which he occupied for several years hut failed to pay the rent; that when a controversy arose as to the amount Barton should pay for the use of said land, the matter was left to arbitrators who made an award of $300 in plaintiff’s favor for the use of the land up to and including the. year 1911; that thereafter Barton continued to use the land during the years 1912 and 1913 at an agreed rental of $75 per year, making an additional $150 due plaintiff for rent, and making, in the aggregate, the sum of $450 due plaintiff for which judgment was asked. A second count alleged that plaintiff was the owner of certain land in Texas upon which was
Plaintiff filed with his petition an affidavit alleging non-residency as a ground of attachment, and, thereupon, an attachment writ was issued and garnishment was served upon Byers Brothers & Company and all money in the hand's of the garnishee belonging to said Celia Barton as executrix was levied upon and attached. No‘ service of the writ was made upon Celia Barton.
Thereafter, Celia Barton as executrix “appearing for the purpose of this motion only and for no other purpose” filed a motion to dismiss. This motion set up certain. facts whereby it was claimed that the'court, in an attachment and garnishment suit, had no jurisdiction over the property attached, or power to render any judgment affecting it; and also asserted thq,t the court was without jurisdiction because no personal service had been had upon her, the said executrix. As this motion was not acted upon, it is needless to set out the facts alleged, especially as they ■ are practically the same facts stated in another motion to dismiss filed against the second amended petition as hereinafter set forth.
Thereafter, plaintiff, as a creditor of Henry Barton, deceased, appeared in the probate court of Jackson county, Missouri, and obtained an order directing Strother, public administrator of said county, to take charge of Henry Barton’s estate located in Missouri. Henry Barton left no property in Missouri, and the only property which could, in any view, be regarded as belonging to his estate was whatever money might be in the hands of the garnishee, Byers Brothers & Company. After the probate court had acted, plaintiff filed a first amended petition making Strother, as administrator of Henry Barton, deceased, a party defendant along with Celia Barton, executrix. This amended petition alleged the same facts as the first except it contained an allegation that Strother, Public Adihinis
Plaintiff filed a second amended petition making Byers Brothers Company, and Byers Brothers & Company Live Stock Commission, additional parties defendant. This petition alleged that Henry Barton formerly resided in Hemphill county, Texas, and became indebted to plaintiff as hereinafter stated, and the said Henry Barton died there in January, 1914, leaving a will in which he bequeathed his property to Celia Barton, and directed therein that no other action could be brought in the county court of Hemphill county in relation to the settling of his estate other than the probating and the recording of the will, return of inventory, appraisement and lists of claims against the estate; that this direction in the will was made pursuant to Article 3362, Laws of the State of Texas' of 1911, providing that, “any person capable of making a will may provide in his will that no other action can be had in the county court in the relation of the
Said second amended petition further alleged that Henry Barton left property in the State of Kansas consisting of a large number of cattle, and that defendant Celia Barton took possession thereof and removed the same to Missouri, and sold them through the defendants, Byers Brothers & Company and the Byers Brothers & Company Live Stock Commission, who owe said Celia Barton the purchase price and now have same in their possession, and who have refused to turn said proceeds over to Strother, the Missouri ancillary administrator; that at all times mentioned in the petition, both Henry Barton and Celia Barton were non-residents of the State of Missouri; that under the laws of the State of Texas, plaintiff has the right to sue the estate of Henry Barton, deceased, in any court of competent jurisdiction, and under the Texas law plaintiff is prohibited from presenting his claim to the county court, which has probate jurisdiction under the laws, of the State of Texas.
Said second amended petition then alleged the renting of the land by plaintiff to Henry Barton up to and including the year 1911, and the awarding of $300 therefor by the arbitrators as stated in the original petition; that said Barton never paid the award; that said Celia Barton a's executrix of his estate is indebted to plaintiff in the' amount, for which judgment was asked. Plaintiff further prayed the court to ascertain the extent of the interest df Henry Barton in the cattle shipped and the amount of money due from the proceeds thereof to said Celia Barton, executrix, and to give such further relief as equity and good conscience required.
Por a second count, the petition adopted the general facts stated in the first count and then set up the claim for rent of the Texas land during the years 1912 and 1913, amounting to $150 as stated in the original petition. It further alleged the same facts stated in .he first count as to Henry Barton leaving cattle in
A third count set up the taking and conversion of the windmill of the value of $125' and a similar claim for that amount.
The petition clqsed with a prayer for judgment against Celia Barton and said Strother, administrator, in the sum of $575, the aggregate of the claims set forth in the petition. The petition further prayed the court to ascertain the amounts owing to the estate of Henry Barton, deceased, from the fund arising from the proceeds of the cattle; that said amount- so found to be due said estate be decreed to be turned over to Strother as administrator; that the court ascertain the amount owed by the estate of Henry Barton, deceased, to the plaintiff herein and decree the same a prior lien on the funds, and for other relief.
Upon the filing of the second amended petition, Celia Barton, as executrix, “appearing for the purpose of this motion only and for no other purpose” filed a second motion to dismiss. Said Inotion set up that she is a resident of Hemphill county, Texas; that her husband, Henry Barton, at the time of his death, was a resident of Hemphill county, that the county court of that county, which court has jurisdiction of deceased persons, appointed her executrix and that she was acting as such; that said Henry Barton, at the time of
As a further ground of dismissal, the motion alleged that defendant had not been personally served with summons either in her own name or as executrix of said estate and therefore has not been, and is not now, properly in court for the purpose of trying said cause on its merits and that the court had no jurisdiction over the person of this defendant, either in her personal capacity. or as executrix of said estate. The motion also alleged that, on a motion by defendant in the probate court of Jackson county, Missouri, asking that court to revoke and cancel the letters issued to Strother as administrator of the estate of Henry Barton, deceased, the said court had revoked and annulled the same as having been issued without authority.
The trial court sustained said motion to dismiss, and plaintiff has appealed.
While it is true that Celia Barton is sued in her official capacity as executrix and not as an individual, yet it will be observed that the motion to dismiss is not based upon a lack of authority or power in the court to entertain a suit against a foreign executrix, but is based upon a want of service summons. In other words,
“Whenever a litigant appears to deny jurisdiction over his person, which would otherwise exist but for the failure to pursue the methods prescribed by law for bringing him into court, he must confine himself to that particular branch of jurisdiction. It is a matter of indifference to him whether or not the court has jurisdiction over the subject-matter ; so long as it has no jurisidiction over his person, it cannot in any way injuriously affect his interests. He must therfore be content to stop with the suggestion that the summons or notice, as the case may be, required by the law to be served, has not been served, and that the court is therefore not entitled to deal with him in the absence of such service. As to whether the court has jurisdiction over the matter embodied in the complainant he need give himself no concern. If he does, in a transitory action, and enters upon a discussion of that question or makes a challenge as to that point, he waives*334 the want of service and enters voluntarily into a controversy .which goes to the merits, and-thereby submits to the jurisdiction of the court over his person. If the action is transitory, it is triable in any competent forum where jurisdiction of the person .may be obtained.”
Defendant cites Myer v. Phoenix Ins. Co., 184 Mo. 481, l. c. 487 to the effect that “a defendant can unite in the same pleading a plea to the jurisdiction, as to the person as well as to the subject-matter, with a plea to the merits, and that he does not thereby waive the question of jurisdiction of the court.” But in Thomasson v. Mercantile Town Mutual Ins. Co., 217 Mo. 485, l. c. 498, the Supreme Court said this meant no more than that the plea to the jurisdiction must be one in which the court had no jurisdiction of the person under the law and did not mean the mere insufficient service of a summons in a case in which the court had jurisdiction upon a proper service of the writ.” As hereinabove stated, the objection to jurisdiction over the person is not based upon want of jurisdiction under the law, but on account of absence of summons. The objection that no jurisdiction over the person had been obtained because no service ivas had would, therefore, seem to have been waived, unless a difference is made, as to such waiver, by the question whether the suit was one which the court had power to entertain if the defendant had been properly brought into court. However, this question of whether the court had power to entertain the suit even if defendant had been regularly served, is one of sharp issue between the plaintiff and said defendant. Plaintiff claims that under' the Texas law above quoted, allowing a testator to provide in his will that the administrator of his estate shall not be subject to the supervision of the probate court, the executrix became, in effect, the trustee of an express trust and could be sued in any court of competent jurisdiction, either in the State- of Texas or in. Missouri or elsewhere, wherever the property and the ex- • ecutrix could be found. In other words, plaintiff claims that the action is transitory; while defendant’s posi
We, therefore, turn to the question whether the trial court had any jurisdiction over the subject-matter of the suit. The facts upon which defendant relies as showing want of such jurisdiction are admitted and appear upon the face of the second amended petition. The motion to dismiss may be considered as filling the office of demurrer since it seeks to dispose of the whole case on' a question of law. [Shohoney v. Quincy, Omaha & Kansas City R. Co., 231 Mo. 131, l. c. 149.]
It is plaintiff’s contention that under the above quoted Texas statute, as construed by the Texas courts, when a testator provides in his will, as did Henry Barton, that his executor may adminster his estate independently of the probate court, the executor does not hold the property under the direction and control of the court, but takes it with full power to pay debts and make distribution without judicial direction or sanction; and such executor .can be directly sued by a creditor of the estate and judgment be rendered against him in any court of competent jurisdiction. Plaintiff, therefore, says that in this ease no reason exists why Celia Barton, the foreign executrix, may not be directly sued in this State and plaintiff’s claim established and ordered paid out of any funds belonging to said estate in this State and within the territorial jurisdiction of the court; that the reason forbidding a suit against the executrix does not apply in this case as in the case of the ordinary executor or administrator of an estate.
It would seem that this should depend upon what our law has to say upon the matter, and if it is silent upon the subject, then other principles governing the relations between States and the rights of their respective citizens may not be without bearing.
Whatever may be the nature of this case after the second amended petition was filed, originally it was a suit by attachment against a foreign executrix to recover a debt claimed to be due plaintiff from the estate of testator. By means of the attachment writ the money in the hands of the garnishee was impounded so to speak and held in this State until plaintiff by its last amended petition could get the holder into court as a defendant in what is now claimed to be, and, in form at last, is, an equity suit. It would seem, therefore, that the plaintiff’s right to maintain the suit under the second amended petition should be determined the same as if the suit was still one in attachment and garnishment, as it was in the beginning.
The title to the property in tliis case was in the foreign executrix before it came into this State. It was not property in this State of which testator had died seized and possessed. Neither did executrix wrongfully bring the property into this State to be converted to her own use. She is not charged with any breach of bad faith. She shipped the cattle to Kansas City for the purpose of paying the chattel mortgage thereon or at least reducing the property of the estate to cash. Under these circumstances can property, shipped by a foreign executor into this State for the purpose of disposing of it for the best interest of the estate, be subject to attachment in this State or be affected by such attachment proceedings, or be compelled to be
The law under which plaintiff is asking the court to establish his demand against the estate is ¡Missouri law; that is the law which the forum is called upon to apply. The Texas statute pleaded does not give plaintiff a cause of action, nor was it pleaded for that purpose, but only to escape the rule in this State affecting the right to bring such a suit against ordinary executors or administrators. And plaintiff’s suit necessarily presupposes or assumes that the title to the property seized is in the estate of the deceased. But in this case the title to the property was in the executrix and the property was reduced to her possession before it came, into the State. There was no vacancy in the legal ownership on account of which an administration in Missouri could be started and the property placed in the hands of a Missouri Administrator. As said in Turner v. Campbell, 124 Mo. App. 133, l. c. 146, “ every administration operates on such property .of the' deceased as is at the time of the grant, or shall be at any time during its existence, within the jurisdiction of the court granting the same, the question determining the jurisdiction is whether there is or is not any vacancy in the legal title to the property where and when found. For if goods are once in the legal possession of an administrator duly appointed, they cannot afterward be • affected by an administration granted in another jurisdiction to which they may be removed, because there is then no vacancy in the legal ownership; they are, technically, no longer the goods of the deceased, but of the administrator of the jurisdiction from which they were removed.” The language here used is identical with that in 1 Woemer’s Am. Law of Adm. (2 Ed.), sec. 159, p. 388. There was, therefore, no authority or warrant for the appointment of Strother as ancillary administrator, and consequently no power in the trial court to render a judgment directing that the property involved herein be turned over to such ancillary administrator.
By the clear intent of our law attachment is not available against property belonging to an estate in process of administration. [Barnes v. Stanley, 95 Mo. App. 688, l. c. 694; Secs. 190-2338-2339 and 2415, R. S. 1909.] If the suit in the case at bar can he maintained, then the claim therein pleaded can he enforced against the estate of a deceased person although there is no recognition by our law of the appointment of the foreign executrix, and there is nothing in our law giving such a forum as the trial court in this case the power to attach property of a deceased person’s estate, and, strictly speaking, there is no property in this State the title to which is in the estate. The title of Mrs. Barton, which this State will in any event recognize, is the title arising from the fact of her possession of the property previous to and at the time it came into the State and not that arising from the validity of her appointment, as executrix. The debt for which plaintiff sues is not one contracted by executrix but one arising by contract between plaintiff and deceased. Hence, the liability of the executrix as to such a debt extends no further than the boundaries of the State where she was appointed and derives her authority.
We are of the opinion that the judgment of the trial court was right and that it should be affirmed. It is so ordered.