187 Mo. 383 | Mo. | 1905
On the eighth of February, 1901, one Chris Sharp of the city of St. Louis died intestate, and on February 11, 1901, Gerrard Strode, public administrator of the city of St. Louis, took charge of his estate under the statute, and afterwards on the sixteenth of March, 1901, instituted this suit against the defendant Charles Gilpin for the conversion of certain assets, alleged to be the property of said deceased, of the value of $13,831.78.
On the fifteenth of February, 1901, the defendant Charles S. Gilpin filed bond in the probate court of the city of St Louis as surviving partner of the said Sharp deceased, which was approved by the said court, and in his answer to the plaintiff’s petition admitted possession of the assets and claimed the same as surviving partner of the said Sharp, deceased. Issue was joined by reply. The case was tried by the court,without a jury. The issues were found for the plaintiff. Judgment was rendered in his favor against the defendant for the sum of $14,564.85, and the defendant appealed.
Cash on hand ..................$ 1,500.23
Cash in American Exchange Bank. 9,021.19 Goods and chattels of the value of.. 3,310.36
Total....................$ 13,831.78
These assets were, nominally, the assets of the “Union Station Cigar Company,” under which name a business had been carried on at the Union Station in the city of St. Louis from April 1, 1895, until the day of the death of said Sharp, February 8, 1901.
The evidence for the plaintiff tended to prove that the said Sharp was in fact “The Union Station Cigar Company.” That he furnished all its capital, received its profits, bore its losses, and at the time of his death was the sole owner of all its assets. That the defendant conducted the business for him at the station as his employee at a salary of one hundred and twenty-five dollars a month, and during the last two years was allowed in addition a commission of ten per cent on the net profits of each of those years, all of which was promptly paid him before the death of said Sharp.
The evidence for the defendant in the main consisted of loose declarations of the deceased made in casual conversations testified to by several witnesses, to the effect that he was going to give defendant an interest or partnership in said business, that he had given him a partnership therein, that he was a partner in said business, and remarks of like character.
The trial court, by its rulings and judgment, in effect held that no partnership between the deceased and the defendant in said business ever existed, and. that the assets in question were the individual property of the said Sharp at the time of his death.
The finding of the court is not only supported by evidence, but by the weight of the evidence, and the judgment of the circuit court should be affirmed, unless the main contention of counsel for the defendant can be maintained, as we find no error in the trial affecting
“ That Grilpin, having given bond as surviving partner and that bond having been approved by the probate court:
“ (1) The probate court has found that Grilpin is surviving partner, and that finding can not be collaterally attacked. His relation to the property in question is the same as if 'letters of administration had been granted him, and his authority can not be collaterally impeached.
“(2) He and the property of the Union Station Cigar Company are within the exclusive original jurisdiction of that court as to all matters pertaining to the probate business of said estate.
“ (3) The property in question is in custodia legis, and 'therefore:
“ (4) The circuit court had no jurisdiction to collaterally attack the action of the probate court, or to deprive it of the power and jurisdiction given it by the laws of the State, by finding that Grilpin is not a surviving partner. ’ ’
The argument of counsel in support of this proposition covers a wide field and many authorities are cited in their brief, but in the view we take of this case, it is unnecessary to follow the lengthy argument, or review the numerous cases cited, as the application of a few well-recognized principles of law which need not even be formally, or at length stated, is decisive of the case. The contention in its general scope seems to.be the combination of a plea of res adjudicata and to the jurisdiction of the circuit court, made for the first time in this court, and counsel for respondent insists that, as no such defense was in any manner tendered or made in the lower court, the defendant ought not to be allowed to make it here. But the decision may be placed on broader grounds.
This suit is a plain action at common law for the conversion of personal property; it has nothing to do with probate business, the granting of letters or the administration of estates, etc. The fact that the plaintiff and defendant are parties to the suit in their representative character, the one as administrator and the other as surviving partner, in no way affects the character of the action, of which the circuit court had jurisdiction beyond question.
When Chris Sharp died, the title to his individual personal property passed to and vested in his personal representative who in this case is the plaintiff, and the title which he had in any property as the partner of another passed to and vested in his surviving partner, who in this case is the defendant; in each case for the purpose of administration. The taking charge of the individual estate of the deceased by the plaintiff as public administrator, in the very nature of things could in no way determine or establish his or the deceased’s title to any particular personal property. So on the other hand, the filing of a bond by the defendant as surviving partner and its approval by the probate
By one of them, the right to take possession of, sue for and recover any personal property belonging to the individual estate of the deceased was vested in the plaintiff, and by the other the right' to take possession of, sue for and recover any personal property belonging to the partnership estate was vested in the defendant, and in each case for the purpose of administration; with the correlative right in each of respectively suing for and recovering the value of any such property that might have been converted. And that they might do so, the circuit court was as much open to them as to any other litigant, whether it became necessary that the action should be brought by one against tbe other, or by either of them against some other litigant, for neither of these acts could determine that any particular property belonged to one estate or the other, nor the right of one as against the other, nor as against any other person to such property; nor could either or both of them bring any property of either estate in custodia legis.
The issue presented and tried in this case in the circuit court was whether the assets in question were the individual property of Chris Sharp, deceased, or the property of a partnership of which the defendant was the surviving partner, and not whether the defendant was a surviving partner of Chris Sharp. His position or status as a surviving partner was conceded and the court found that as such he had no title to the assets in question, because those assets were in fact the individual assets of Chris Sharp, and not the assets of a partnership between him and the defendant of which the lattej was the survivor. Full faith and credit was given to the proceedings in the probate court for
