254 Mo. 198 | Mo. | 1914
This action originated in the probate court of Lawrence county, December 3, 1906, by the filing of the following unitemized claim against the estate of Mary J. Stotts, deceased :■«
ORIGINAL DEMAND.
The estate of Mary J. Stotts, deceased, to C. R. King, debtor.
April 28, 1907, to May 26, 1907, 9 visits from
*203 Crane, Mo., from residence to Stotts City, Mo., 331-3-miles; detained in attendance 21 days visits and detaining........................................ 350.00
March 17, 1908, to June 9, visits 196........'............ 197.50
Total amount ....................................$547.50
This demand was accompanied by the usual affidavit, and to it was also attached a waiver of service by the -administrator. On December 14, 1908, the probate court rendered a default judgment against the estate for the full amount of the demand. March 22,1909, the following petition was filed:
MOVENT’S PETITION.
State of Missouri, County of Lawrence, ss.
In the Probate Court, February Term, 1909.
In the Matter of the Estate of Mary J. Stotts, Deceased.
Charles L. Henson, being of lawful age and duly sworn, upon his oath says that he has good reason to believe and does believe that the demand of C. R. King, allowed by their court oh the 14th day of December, 1908, for $547.50 has been improperly allowed, and acting herein for Mary K. Pruitt and Fannie Davis, heirs at law of said Mary J. Stotts, desires to furnish satisfactory evidence of such fact of such improper allowance to this court, and after notice given to said King, the claimant, asks that such order so allowing such claim shall be vacated and the matter tried anew in this court, and for proper relief.
Charles L. Henson.
Subscribed and sworn to before me on this the 22nd day of March, 1909. C. W. Crooks,
Judge of the Probate Court.
Notice of this was duly served upon Dr. King March 29, 1909, and upon April 12th the claimant King, making a special appearance, moved to strike the motion signed by Henson, quoted above, from the docket for the following reasons:
First. The said action of Mary K. Pruitt and Fannie. Davis fails to state facts sufficient to constitute a defense against the said demand of the said C. R. King, or facts that the movents propose to prove to show that the demand was improperly allowed.
*204 Second. The court had no jurisdiction over the person of the said C. R. King.
Third. The court has no jurisdiction over the subject-matter of said motion of the said Mary K. Pruitt and Fannie Davis.
Fourth. The notice served upon the said C. R. King by the said Mary K. Pruitt and Fannie Davis was not served in the time or in the manner prescribed by law and failed to advise said C. R. King of any facts that said Mary K. Pruitt and Fannie Davis would prove to the court to satisfy the court that the said demand' of C. R. King had been improperly allowed.
Fifth. The affidavit and motion filed herein on part of said Mary K. Pruitt and Fannie Davis is insufficient to confer jurisdiction of the subject-matter upon the court and fails to state facts sufficient for a defense against the demand of the said C. R. King or facts sufficient to warrant the court in vacating the allowance of said demand.
This motion of the claimant, King, was overruled, and the probate court, on said April 12th vacated and set aside its judgment of December 14, 1908, and ordered that such demand against the said estate be tried anew. On the same day the probate court entered a new judgment upon the merits allowing to Dr. King. $216' instead of $547.50'. This judgment on its face purports to have been rendered upon a hearing of testimony in the cause. The claimant, King, thereafter thus moved for an appeal:
Comes now C. R. King and moves the court to grant him an appeal from all of the orders and decisions made and rendered by the court on Monday, April 12, 1909, in the said estate of Mary J. Stotts, deceased, in anywise seeking to affect the rights of said C. R. King as a creditor of the said estate, and particularly the orders, decisions and judgments of the court vacating or seeking to vacate the allowance of a demand against the said estate of Mary J. Stotts in favor of said C. R. King about December, A. D. 1908, and an order, decision or judgment allowing or attempting to allow a demand against the said estate and in favor of said C. R. King on said April 12th, A. D. 1909.
Appeal was granted and the cause in due time reached the circuit court. Upon the arrival of the cause in the circuit court, the claimant, King, on Sep
Now comes Dr. C. R. King and moves the court to dismiss the complaint of Mary K. Pruitt and Fannie Davis herein for the reasons following, to-wit:
First. The complaint fails to state facts sufficient to constitute a cause of action against Dr. C. R. King.
Second. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to hear or determine the issues therein tendered.
Third. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to vacate the allowance made against the estate of said deceased, Mary J. Stotts, December 14, 1908, in favor of said Dr. C. R. King, even if every allegation therein were true and established to the satisfaction of the court.
Fourth. No affidavit was ever filed in- the probate court or in this court, by or on behalf of said Mary K. Pruitt and Fannie Davis, as a basis of or as incident to this proceeding.
Fifth. No statement of facts was ever filed by or on behalf of said Mary K. Pruitt and Fannie Davis as a basis of or incident of this proceeding.
Sixth. The complaint does not state that the said allowance was in fact improperly allowed, nor does it state any facts from which it can be inferred that it was improperly allowed.
Seventh. Section 30 of article 2 of the Constitution of the State of Missouri, relating to due process of law, is violated by requiring Dr. King to answer to the complaint of the said Mary K. Pruitt and Fannie Davis, for same wholly fails to advise him of the nature of the complaint against him.
Eighth. The said section 30 of article 2 of the Constitution of the State of Missouri, relating to due process of law, is violated in requiring said Dr. C. R. King to answer said complaint upon the notice given him in this proceeding, because said notice failed to advise him of the nature of the complaint he would be called upon to defend against and was not issued or served by lawful authority, or in proper time or manner.
Ninth. The only notice ever given said Dr. C. R. King was given after said complaint was filed in the probate court.
Tenth. The service and the notice were both insufficient to confer upon the probate court jurisdiction over the subject-matter of the motion or of the person of the defendant.
Tbis motion of Dr. King’s was overruled by tbe court, and tbe claimant King then demanded a jury to try tbe one question as to wbetber or not tbe pro
In the Circuit Court of Lawrence County. To September Term, A. D. 1909.
In the Matter of the Estate of Mary J. Stotts, Deceased.
Comes now Dr. C. R. King and for answer to the complaint of Fannie Davis and Mary K. Pruitt, heirs at law of said Mary J. Stotts, deceased, 'denies each and every allegation therein and prays the court to render judgment in favor of said Dr. C. R. King for his costs in this behalf laid out and expended. Oscar B. Elam:,
Attorney of Dr. C. R. King.
And to tbis counsel for tbe estate replied by moving to strike out said “pretended answer” assigning tbe following as tbe basis of such motion:
For the reason that the said C. R. King has filed his demand in the probate court and the entire record is in this court upon said King’s appeal wherein, if he recovers, it will be necessary for said King to prove his said claim and a trial de novo will be necessary of all the matters and things embodied in said appeal.
We find no disposition of tbis motion, in terms, in tbe record.
Tbe trial below was- dual in form. First tbe trial court determined tbe question as to whether or not tbe probate court bad tbe right to vacate its judgment of December 14, 1908, and, secondly, the merits of tbe cause was disposed of by a judgment against tbe claimant. From tbe record it appears that claimant declined to participate- in the- bearing upon the merits. Tbis we glean from tbe following in a somewhat mixed record:
*207 Here Dr. C. R. King rests his case.
Mr. Henson: I move the court that he make an order finding this claim is improperly allowed and that we go ahead to try the matter now as to the amount of Dr. King’s demand as provided by section 214.
Motion sustained by the court.
Mr. Elam: Dr. C. R. King excepts.
Mr. Henson: The estate of Mary X Stotts is here now and ready to take up and try anew the demand of C. R. King.
Mr. Elam: Dr. King refuses to try the case upon the merits.
The claimant then filed a motion for a new trial, accompanied by some remarks of counsel thus:
Dr. C. R. King comes now and moves the court to set aside and rehear the judgment rendered herein this day vacating the allowance made by- probate court of Lawrence county, Missouri, against the estate of said deceased, Mary X Stotts, in favor of Dr. C. R. King, December 14, 1908, for the reason that the court over the objection and exceptions of said Dr. C. R. King and to his prejudice:
First. Erroneously overruled the plea of said King to the jurisdiction of the court.
Second. Erroneously overruled the motion of said King to dismiss the complaint of Mary K. Pruitt and Fannie Davis.
Third. Rendered a judgment not within the issues tendered by the pleadings.
Fourth. Admitted incompetent, irrelevant and immaterial evidence.
Fifth. Excluded competent, relevant and material evidence tendered on behalf of said King.
Sixth. Rendered a judgment not supported by any evidence.
Seventh. Rendered a judgment in conflict with the undisputed evidence.
Eighth. Rendered judgment against the wrong party.
Ninth. Denied the said King the right of trial by jury in violation of section 28 of article 2 of the Constitution of Missouri, and section 30 of article 2 of the Constitution of Missouri. C. R. King,
By his attorney, Osear B. Elam.
Filed Sept. 16, 1909.
U. S. Kendall,
Circuit Clerk.
Mr. Elam: The motion for a new trial is on the hearing in relation to vacating the original allowance and Dr. King does not appear to the cause on its merits.
Now at this day comes C. R. King by Ms attorney and by leave of court files affidavit and application for an appeal herein, and deposits with the clerk of tMs court the ten dollars docket fee as required. by law. Whereupon the court having duly considered' said affidavit and application, awards the said C. R. King an appeal herein to the Supreme Court of the State of Missouri.
The short form transcript filed in this court contains both judgments entered by the eircuit court) i. e., the separate judgment wherein the circuit court upon a hearing found that the probate court was. right in setting aside the judgment of December 14, 1908;, as well as the separate judgment wherein the circuit court found against the claimant as to his claim. The foregoing fully states the case here for all purposes urged in the briefs.
“Mr. Elam: Dr. King moves the conrt for a trial by jury on the question of whether the probate court improperly allowed the demand.
*210 ‘ ‘ The CourtOverruled.
“Mr. Elam: Plaintiff excepts to the action of the court in refusing a jury for trial on the question ■of whether the probate court improperly allowed the ■demand of C. R. King against the estate of Mary J. .Stoots, deceased.
“The Court: The court declines to have a jury, basing its ruling on section 214, Revised Statutes 1899, ■to try the question of improper allowance.
“Mr. Elam: Dr. King excepts.”
The court thereupon proceeded to hear testimony upon the circumstances of the allowance originally made by the probate court to Dr. King, and in connection therewith testimony upon the value of his services to the deceased. Throughout all this Dr. King .and his counsel appeared and cross-examined witnesses. Not only so, but Dr. King put on witnesses in his own behalf, and testified himself in his own behalf. This testimony tended to both the service rendered to deceased by Dr. King and the value thereof. But throughout this whole proceeding it is clear that ■counsel upon both sides were aiming to> try the one issue, as to whether or not the probate court was in error in vacating its original judgment, and as evidence of that situation, and at the end of it all, is Dr. King’s motion for new trial .which expressly assails but the one judgment, and that one the judgment ■adjudging- that the probate court was right in setting aside the original allowance. But for fear the court might misunderstand the motion counsel for Dr. King ■undertook to make it plain thus:
“Mr. Elam: The motion for á new trial is on ■the hearing in relation to vacating the original allowance and Dr. King does not appear to the cause on Its merits.”
This is the only motion for new trial found in the whole record, and it goes solely to the first judgment described in our statement. Prom it all it is clear
IY. There is at least here for our review the question raised as to the judgment setting aside the original allowance to Dr. King1 in the probate court. There is a motion for new trial directed at this part of the trial court’s action, and as we have held both judgments have been appealed from, the question raised as to the preliminary order or judgment are here for review.
“If an executor, administrator, heir or creditor of an estate shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of himself or some credible person, stating that the affiant has good reason to he*212 lieve, and does believe, that suck demand has been improperly allowed, and shall furnish satisfactory evidence of that fact to the court, and further, that notice has been given the opposite party or parties in interest, the court shall vacate such order of allowance and try the matter anew, and allow or reject such demand, as shall be right; and if, upon such new hearing, such demand shall be allowed, it shall be classed and paid as if such new hearing had been granted.”
The affidavit we have set out in full in our statement of the case. This affidavit complies with the statute, supra. This statute, which is an amendment of an older statute, is- highly remedial, and intended to facilitate the work of the probate courts, in getting at righteous results in allowances. Smith, P. J., in Martin v. Estate of Nichols, 63 Mo. App. l. c. 349, thus speaks of the present statute:
‘ ‘ The section is remedial in its character and must receive a liberal construction. [Weil v. Simmons, 66 Mo. 617.] The plain and obvious object the lawmaker had in view in so amending the statute was to afford the administrator, executor, heir, or creditor of an estate, having reason to believe that an improper allowance had been made against the estate, an opportunity to> have the same, within four months' thereafter, set aside and the matter tried anew, and this, too, whether notice of the presentation is given to the representative or his agent. And this statutory enlargement of the jurisdiction of the probate courts does not, in any way, alter or affect the jurisdiction of the circuit courts exercising equitable jurisdiction. The jurisdiction of these courts, in cases of fraud, is not ousted because a remedy exists at law. [Dingle v. Pollick, 49 Mo. App. 479.] ”
Under such a statute, if the affidavit complies with the terms and requisites of the statute, it is sufficient. This affidavit follows the language of the statute and should be held. sufficient. Again the statute
“But it is said‘that section 214 requires the party moving to vacate a demand, to furnish satisfactory evidence to the court that the demand was improperly allowed. We do not understand the statute to mean that the mover must give such proof against the allowance as would be required to defeat it at a hearing on the merits; but only that such a probable showing must be made against its propriety as will convince the court that the matter ought to be reheard in order to be more sure of a correct result. The findings of fact contained in the judgment vacating the present allowance show the court was satisfied to that extent. There was no abuse of judicial discretion in the ruling to justify us in reversing it. ’ ’
It is also held that one contesting an allowance in the first instance cannot move to vacate the allowance under this statute. In the Keele case, supra, at page 272 et seq., it is said:
“The scope of that section has not been fully defined by adjudications; but in our judgment it was not intended to allow a party interested in an estate who appears and contests the allowance of a demand, to move afterwards to vacate the allowance on the same grounds on which he contested it. To take this view of the statute would annul, as far as the allowance of demands against the estate of deceased persons is con*214 cerned, the general doctrines governing the effect of former adjudications. An executor, administrator, heir, devisee, legatee, creditor, or other person having an interest in an estate may appeal from a judgment allowing against the estate a demand exceeding ten dollars. [R. S. 1899, sec. 278.] If the demand is made after an actual contest by any party in interest, we think section 214 of the statute does, not contemplate that such party can have the matter reopened for another contest on the identical ground previously adjudicated.”
Now to the second question. Was Dr. King entitled to a jury? We think not. This application to
*216 C. R. King, Plaintiff, v. Estate of Mary J. Stotts, Deceased.
Judgment against C. R. King on his demand.
After the vacation, as improperly allowed, of the order of the prohate court of Lawrence county, Missouri, made December 14, 1908, in favor of C. R. King and against the estate of Mary J. Stotts, deceased, by this court, and the affirmance by this court of the order of the probate court made April 12, 1909, vacating, as improperly allowed, said allowance of December 14, 1908, from which last named order, as well as other orders made herein on April 12, 1909, by said probate "court, said King appealed to this court, the above entitled cause and matter of the demand of C. R. King against said estate comes on now to be heard and tried anew and be allowed or rejected as shall be right.
And it appears that the administrator of the estate of Mary J. Stotts, deceased, having waived the service of the notice of the presentation of said demand in the probate court aforesaid, and James D. Whaley, administrator of said estate of Mary K. Pruitt and Fannie G. Davis, heirs at law of said Mary J. Stotts, deceased, and of her estate, by Charles L. Henson, their attorney, appear and ask and demand of said C. R. King and this court that said matter of the demand of said C. R. King against said estate be now tried anew and announce ready for trial; and said C. R. King although requested to do so, doth refuse to appear to this proceeding or to show any cause for continuance thereof, whereupon the court, a jury being waived, doth proceed to hear the evidence adduced on said demand of said C. R. King, and after hearing all the evidence adduced doth find the issues against said C. R. King, and that he is not entitled to recover herein, and his demand against said estate is therefore rejected. Wherefore, it is considered, odered and adjudged that said administrator go hence without day and that he recover of and from said C. R. King his costs herein laid out and expended, for all which execution may issue.
The things which, happened at this trial are not preserved by bill of exceptions. They announced that they would not appear and try the merits. The judgment recites that Dr. King .refused-to appear. The question then is, what should have been, done by the trial court1? As a fact the trial court proceeded to try King’s case after he had abandoned it. His claim was in the nature of a suit against the estate. When