Lewellyn v. Lewellyn

87 Mo. App. 9 | Mo. Ct. App. | 1901

Rehearing

ON MOTION EOR REHEARING.

•This proceeding was begun in the probate court of Clark county. It is under the statute, to revoke the letters of respondent as administrator of the estate of John W. Lewellyn. A trial in the probate court resulted in a judgment for the administrator from which his adversaries appealed to the circuit court. In the latter court, on a trial de novo, a judgment was rendered revoking his letters, from which he appealed to this court. At the October term, 1900, of this court, diminution of the record was suggested by both parties and leave was taken to supply the records as on return to a writ of scire facias. In pursuance of this leave both parties have filed additional transcripts, and each have filed a motion to strike out the additional transcript filed by the opposite party. The bill of exceptions as it appears from the original transcript was filed out of time. Appellant attempted to cure this defect by filing in the Clark Circuit Court, at the April term, 1900, thereof, his motion to supply a lost paper, the contents of which he alleged showed that the judge of the Clark Circuit Court had, by an order made on the thirty-first day of December, 3 897, extended time to file his bill of exceptions to March 1, 1898. Over the objections of respondent, appellant introduced evidence tending to prove that an extension of time in which to file a bill of exceptions had been granted him by the court, and that it was lost or destroyed. On this evidence the court sustained the motion and made an order supplying the lost paper. The order as supplied shows time to file bill of exceptions was extended to March 1, 1898.

On August 28,1898, to which date further leave had been granted to file the bill of exceptions, the attorneys of record for both parties agreed to again extend the time of filing the bill to the first day of November, 1898. On the second day of November, 1898, the day after the expiration of the time in which the bill should have been filed, the judge of the court, by written order, extended the time to file to November 14, and the bill was filed on November 15, 1898.

After the first day of November, 1898, the limit of the time agreed upon in which the bill might be filed, the judge of the court had no authority to further extend the time. State v. Schuchmann, 133 Mo. 111, and cases cited. We therefore hold that there is no bill of exceptions before us 'and that the case is not reviewable, except on the record proper.

It is contended by the appellant, that the transcript from the probate court, as originally filed in the circuit court and on which a trial do novo was had, is insufficient to confer jurisdiction on the circuit court. The transcript contains the charges of maladministration against the administrator (appellant), the judgment of the probate court on a hearing of the charges, and the affidavit for an appeal, but it contains no order of the probate court allowing the appeal, nor is the transcript .certified by the judge or clerk of the probate court. Section 284, Revised Statutes 1899, requires the clerk of the probate court, when an appeal is taken, to transmit the papers and a certified transcript of the proceedings to the circuit court or other court having appellate jurisdiction, and the succeeding section (285) requires the circuit court, or other court having appellate jurisdiction, to try the case anew without regarding any error, defect or other imperfection in the proceedings of the probate court. The filing of the affidavit for the appeal ousted the probate court of jurisdiction of the cause and transferred it to the circuit court. If any formal order was necessary to be madb by the probate court granting the appeal, the fact that it sent up the papers and transcript to the circuit court was tantamount to an allowance of the appeal. When the transcript was filed, the circuit court became possessed of the cause and the parties appeared and went to trial without raising any objection to the transcript, and by so doing the defects and imperfections of the transcript were waived. Cooper v. Cooper, 86 Ind. 75; County of Boone v. Corlew, 3 Mo. 10; Ellenrath v. Kallmeyer, 61 Mo. App. 430.

The appellant contends in his motion for re-hearing that the complaint is insufficient to support the judgment. The complaint on which the cause was tried is as follows:

“State of Missouri, " County of Clark. } ss.

ss.

“In the probate court of Clark county, Missouri, May term, 1896.

“Now, on this day, come the complainants, Charles T. Lewellyn and Nannie Benning, and by way of amendment to the first complaint filed herein, state to the court that they are the heirs at law of John W. Lewellyn, deceased, late .of Clark' county, Missouri, and as such are interested in the safe, proper and correct administration of said estate, and are entitled to distribution therein. That George E. Lewellyn is now and was for a long time past the duly qualified and acting administrator of said estate.

“Complainants charge: First. That he has failed and refused to charge himself in his settlements or inventory with the rent of the land of the estate.

“Second. That he has failed and refused to make a perfect inventory of the assets of said estate.

“Third. That he has not accounted for the rents and profits of said estate since his appointment as administrator of said estate.

“Fourth. That he has failed and refused to make final settlement in said estate, though often requested to do so by your complainants.

“Fifth. That he has purposely kept said estate in debt, and has, during’ all of this time negligently and grossly mismanaged and wasted said estate so as to endanger the rights and interests of creditors and your complainants.

“Sixth. That he is incapable and untrustworthy as administrator.

“Wherefore, your complainants pray that the letters of administration granted to George E. Lewellyn upon said estate be revoked, and letters of administration be granted to some suitable person. O. T. Lewellyn.

“Subscribed and sworn to before me this twenty-eighth day of May, A. D. 1896. R. L. Eord, Notary Public.

(L. S.) “My commission expires July 10, 1898.”

The sufficiency of this complaint to support the judgment is challenged on two grounds: first, that it was not subscribed and sworn to as required by the statute in such proceedings, and, second, that it does not state facts sufficient to constitute any cause of action. The complaint is subscribed to by O. T. Lewellyn, one of the complainants, and is sworn to by him before an officer authorized to administer oaths. This is sufficient. It was not necessary that it should be sworn to by both complainants. The allegations of maladministration are general and indefinite. The demurrer or motion to make more definite and certain, had one or the other been offered, should have been sustained. Appellant elected to go to trial on it as he found it, without objections to its sufficiency. It is too late after judgment to object to the sufficiency of the complaint, if it contains any allegations, however general in its terms, sufficient to support the judgment. The complaint alleges generally wherein the administrator failed to administer the estate according to law and to inventory personal property of the estate, and failed to .wind up the estate within the time prescribed by statute. These are charges of mismanagement for which cause an administrator may be removed (R. S. 1899, see. 12), and though general are sufficient after verdict to support the judgment.

The motion for rehearing is overruled. •

All concur.

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Lead Opinion

BLAND, P. J.

The judgment from which the appeal was taken was rendered on April 9, 1897, and leave was granted at the same term to file bill of exceptions on or before August 10, 1897. Timely orders were made by the judge of the court extending the time for filing bill of exceptions to September 1, 1898. 'On the twenty-first day of August, the' parties agreed in writing to an extension of the time to file the bill to November 1, 1898.

On November 2 the judge of the court extended the time for filing the bill to November 15, 1898. The bill was filed on November 14, 1898. .

The time for filing the bill of exceptions, as per agreement of parties of August 21, 1898, expired on November 1, 1898. It was, therefore, beyond the power of the court to grant a further extension after that date. The order of the court made on the second day of November, extending the time to the fifteenth of the same month, is without authority and void. State v. Schuchman, 133 Mo. 111; Loewen v. Hicks, 63 Mo. App. 79. There is no bill of exceptions in the cause — nothing to review, and the judgment is affirmed.

All concur.