128 Mo. App. 48 | Mo. Ct. App. | 1907
This is an action in the nature of a suit in equity instituted to set aside and hold for naught a judgment of the probate court of the city of St. Louis, to restrain the defendant Patrick H. Clark, sheriff of said city, from paying over money Avhich had been col
1. It was not permissible to show by oral testimony in contradiction of the sheriff’s return, that plain
It is insisted by plaintiff’s counsel that in the proceeding to compel Strobel to make settlement and turn over the assets in his hands as executor, the probate court had no jurisdiction to hear evidence concerning, and enter judgment for, a debt Strobel owed the deceased or to hear and determine the issue of whether plaintiff had concealed assets in his hands which had not been inventoried by Strobel as executor. The argument is that different remedies had to be resorted to as to those matters and that to adjudicate regarding them in said proceeding to the plaintiff’s prejudice, was an exercise of excessive jurisdiction which rendered the judgment void. We need not determine whether or not the probate court in fact exceeded its jurisdiction, if it adjudicated such demands.- As to its right to adjudicate concerning the alleged indebtedness for rent, the decisions appear to be contradictory, as will be seen by reading the following cases: McManus v. McDowell, 11 Mo. App. 436; Ridgeway v. Kerfoot, 22 Mo. App. 661. We have recited the substance of the entry of the judgment of the probate court. It does not appear from said entry that the court included in its judgment the indebtedness of Strobel to Baier or an order that Strobel should pay over to Troll any assets belonging to Baier’s estate which had not come into his (Strobel’s) hands as executor. The judgment recites the court found on hearing the evidence, that at the time of the suspension of Strobel as executor, he had in his hands as executor belonging to the estate, the sum of $935; and it was for this sum that judgment was entered. What we have to determine, therefore, is whether or not it was competent for plaintiff, by oral testimony, or other evidence outside the record of the proceedings in the probate court, to prove that- in fact
The judgment is affirmed.