106 Mo. App. 307 | Mo. Ct. App. | 1904
Julius W. Koch was the guardian of the person and estate of Edward H. Sachleben, a minor. He filed his final settlement in the probate court of St. Louis, December 6, 1902, his ward having attained his majority prior to that date. In said settlement he exhibited the assets in his hands as follows:
Forty-four shares of stock in the Fourth Nat’l Bank, inventoried at ..................$4,400.00
One-half interest in a piano, value.......... 87.50
The center diamond in a breast-pin, appraised at................................ 50.00
Cash.................................... 1,733.08
Total........................$6,270.58
‘ ‘ Received this thirteenth day of December, 1902, of Julius W. Koch, guardian of my estate, forty-four shares of the capital stock of the Fourth National Bank of St. Louis, transferred and assigned to me; the one-half interest in the piano, and the center or middle diamond of the breast-pin appraised at $50 all as inventoried in said estate, and also the sum of one thousand*310 seven hundred and thirty-three dollars and eight cents, being money and property ordered turned over to me by the probate court of the city of St. Louis at the •December term, 1902, of said court. Dated St. Louis, Mo., Dee. 13,1902. Edw. H. Sachleben.”
Simultaneously with the execution of said receipt, the probate court finally discharged Koch as guardian, and on the same day Sachleben prayed an appeal from the judgment of the probate court overruling his motion for a peremptory order on Koch to turn over to him the money and property, overruling his exceptions, approving the final settlement, allowing Koch the compensation aforesaid and discharging him as guardian. Sachleben filed his affidavit and bond for appeal and the appeal was allowed. Koch filed a motion in the circuit court to dismiss the case on the ground that the appeal was granted improvidently and without authority, as Sachleben, after the judgment approving the final settlement and discharging Koch as guardian, had received from the latter the property aforesaid and in open court had acknowledged the receipt of it, thereby accepting the fruits of the judgment and precluding an appeal. The circuit court sustained the motion to dismiss and from that judgment an appeal was taken by Sachleben to this court.
The articles of property received by Sachleben from his guardian were never in contest. Sachleben’s right to receive those articles was conceded and the exceptions filed by him related to other matters; viz., commissions claimed by Koch and rents alleged to have been collected by him. But those matters had to be taken into account to determine the amount of cash left in Koch’s hands to be paid to his ward and were necessarily decided in disposing of the exceptions to the settlement. If he had not charged himself in his settlement with the rents collected by him, or had taken credit for excessive commissions, the balance of cash was greater than his settlement showed. The probate court in order to ascer
We are aware there are precedents holding that a party who recovers judgment for an amount tendered and then accepts the tender, or who accepts payment after judgment of items' which were never in contest, is not debarred from appealing. We cite cases of that kind, some of which resemble this one except that it did not appear the money or property received by the appellants was involved in the judgments appealed from. Embry v. Palmer, 107 U. S. 8; Tyler v. Shea, 4 N. Dak. 377; Upton Mfg. Co. v. Huiske, 69 Ia. 557; Tarleton v. Goldsthwaite’s Heirs, 23 Ala. 346; McCreeliss v. Hinkle, 17 Ala. 459; Cocks v. Haviland, 7 N. Y. Supp. 870.
The facts before us bring this controversy within the scope of the Missouri decisions cited above. In re Hutton’s Estate, 99 Mo. App. 132, decided by the Kansas City Court of Appeals, held that an appellate court could not look outside the record before it in disposing of an appeal. In that case the question arose whether an' appeal could be prosecuted from a judgment of the circuit court overruling certain exceptions to an administrator’s settlement, the exceptors having received their distributive _ shares pursuant to an order of distribution made by the probate court subsequent to the overruling of the exceptions by the circuit court. There was nothing in the record of the proceedings in the circuit court to show the order of distribution had been made and its fruits accepted'by the appellants. In the case before us all the facts are contained in the record of the proceedings in the circuit court.
The judgment is affirmed.