124 Mo. App. 241 | Mo. Ct. App. | 1907
On' October 27, 1893, defendant S. T. Canterbury was appointed administrator of the estate of Thomas Johnson, deceased, by the probate court of Howell county. The other defendants are sureties on his bond as administrator. For some reason, not stated, Canterbury ceased to be administrator of Johnson’s estate and plaintiff, T. J. Langston, was appointed administrator cle bonis non, and under the provisions of section 48, Revised Statutes 1899, commenced a summary proceeding against Canterbury, in the probate court of Howell county, to compel Canterbury to make his final settlement, to which the sureties on his bond were made parties and were duly notified. In due course the cause was appealed to the circuit court, where on a trial de novo the circuit court, by allowing Canterbury credits for the payment of two promissory notes given by Johnson in his lifetime, one for one thousand dollars and one for twelve hundred dollars, which were not and never were probated against Johnson’s estate, found the estate indebted to Canterbury in the sum of twelve dollars. Langston appealed the cause to the Supreme Court. The Supreme Court held that Canterbury, as administrator, had no right to pay the notes out of the assets of the estate without they were first probated and was not entitled to credits therefor, and remanded the cause to the Howell Circuit Court, with directions to follow the law as declared in the opinion. [Langston v. Canterbury, 173 Mo. 122, 73 S. W. 151.] After the cause was remanded, to-wit, on January 7, 1904, the case was retried to the Howell Circuit Court and judgment rendered against Canterbury, as administrator of Johnson’s estate, for the sum of $2,339 and fifty dollars costs, and the judgment was certified to the probate court of Howell county, where it was entered of record.
The answer of the sureties in the present action denied that they were parties to or bound by the judgment of January 7,1904, of the circuit court, and alleged
Section 48, supra, under which tbe summary proceedings in tbe probate court were commenced, provides that the probate court “shall ascertain tbe amount of money ... in tbe bands of such administrator or executor, or that came into, bis bands and remain unaccounted for at the time of bis resignation or removal from office or revocation of bis letters, and to enforce such order or judgment against such administrator or executor and bis sureties, if they bad due notice of tbe proceedings,” etc. Tbe judgment should have been rendered against Canterbury and bis. sureties. [Brown v. Weatberby, 71 Mo. 152.] It is stated in appellant’s abstract, that it was admitted on tbe trial, that at tbe time tbe judgment was taken, the cause was dismissed as to all tbe parties defendant except Canterbury. Tbe respondents, in their statement of tbe cause, say: “They (tbe sureties) were not named in the judgment, neither was there any order of court dismissing them from tbe suit then pendingthat this fact was not denied at tbe trial, but was not incorporated in tbe bill of exceptions; and in support of these statements, respondents have filed, as an additional abstract, tbe certificate of the clerk of tbe Howell Circuit Court, in which tbe clerk states be has searched tbe records of bis office and failed to
The judgment recites: “On this seventh day of January, 1904, this cause coming on to be heard and both plaintiff and defendants being present by their respective attorneys, announce ready for trial and the matters in issue are submitted to the court without a jury.” It then proceeds to state the account between Canterbury and the estate, and finds Canterbury, as administrator, is indebted to the estate in the sum of $2,399, and concludes: “It is therefore considered and adjudged by the court that the plaintiff, as administrator de bonis non, recover of and from said Sam F. Canterbury, former administrator, the said sum of $2,399 and that this judgment be certified to the probate court of Howell county, Missouri, as the final and surrendering settlement herein.” The judgment nowhere disposed of the case as to the sureties or took any notice whatever of them, but to recite their appearance, their announcement as ready for trial, and the submission of the cause to the court. The judgment against Canterbury purports to be a final one, upon which execution might-issue. [Section 48, supra.] The present action is to recover on the same cause of action, to-wit, the amount of the notes paid by Canterbury without authority, for w’dch the judgment of January 7, 1904, was recovered, ’’on 773, Revised Statutes 1899, provides:
“"lien there are several defendants in a suit, and some of them appear and plead and others make default, an interlocutory judgment by default may be entered - mh such as make default, and the cause may proceed a .gainst the others; but only one final judgment shall be given in the action.”
This section has been held to be mandatory. [Henry v. Gibson, 55 Mo. 570; Holborn v. Naughton, 60 Mo. App. 1. c. 103; Beshears v. Vandalia Banking Assn., 73
The judgment is reversed and the cause remanded.
