73 Mo. 658 | Mo. | 1881
I.
There was error in holding that the probate court of Carroll county had no jurisdiction of the cause. Section 1 of article 4 of the act establishing that court, (Acts 1859-60, p. 45,) confers the usual “ exclusive original jurisdiction” on that court, conferred by most of the probate acts, and section 2 of that article provides that “executors, administrators and curators may sue and be sued before said judge of probate, in all cases at law in which the action of debt or assumpsit will lie, and for all sums or demands, and damages claimed to be due to and from themselves in their representative character, or claimed to be due to or from their testator or intestate, and for all breaches of civil contracts in which executors and administrators . * * are necessarily parties plaintiffs or defendants.” And section 8 of the same article, gives that court “ concurrent jurisdiction in law and equity with the circuit court, in all matters * * in which executors, administrators, etc., are necessarily parties, complainants or defendants.” The statutory provisions just cited, have never been adjudicated by this court, and they cause this case to differ very widely from all others which have preceded it.
The case of Dodson v. Scroggs, 47 Mo. 285, was based upon the statute of 1845. Sess. Acts, p. 70. There, however, the suit was brought in the Dade circuit court, against Scroggs, administrator of Scott, and Rector, administratrix of Rector, as the representatives of their respective intestates, and against no one else. They were sued for breach of an administration bond which had been executed by Scott and
But in none of the cases cited were there such pro
II.
But granting that the probate court had not jurisdiction, the judgment must be affirmed for the reason that, until an order is made by the probate court for an administrator to pay a demand or a certain portion thereof, no action lies against the administrator. State to use, etc., v. Modrell, 15 Mo. 421. No such order was made in this case; the one made only required the administrator to pay fifty per cent on all “ unsecured claims in the fifth class.” Relator’s claim was not of this description. It is unnecessary to pass upon the correctness of this order; if erroneous, perhaps an appeal should have been taken. Eor the reasons last aforesaid, judgment affirmed.