Wernse v. McPike, 76 Mo. 249

Wernse v. McPike

76 Mo. 249 | Mo. | 1882

Norton, J.

l. roranono* in pp.obate cases. It It is provided in section 6 Laws 1865-6, page 84, that the probate court of Ralls county shall “ have exclusive original jurisdiction * * ;hear an <} determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of their testator or intestate subject to appeals in all cases to the circuit court.” It has been held by this court in the following cases, in construing the above language in the above act, establishing certain probate courts, of which the probate court of Ralls county was one, that it divested circuit courts of all jurisdiction to render a judgment upon any demand against the estate of a deceased person in a suit commenced after the death of an intestate against his administrator. Wernecke v. Kenyon, 66 Mo. 275 ; Dodson v. Seroyys, 47 Mo. 285 ; Cones v. Ward, 47 Mo. 289. And the fact that a living person was jointly liable with the deceased would not authorize the circuit court to take jurisdiction. Julian v. Ward, 69 Mo. 153. It, therefore, follows from what has been stated that the judgment rendered by the circuit court of St. Louis county in favor of the Trader’s Bank against Henry C. MePike, administrator of Abraham MePike, was void, because the said court had no jurisdiction of the subject matter of the suit.

2. __: notice of demand. The record shows that the judgment thus rendered was presented to the probate court of Ralls county and was classified by being put in the fifth class of demands, and that the administrator, subsequent to such classification, in a petition to the probate court to sell real estate, mentioned it as a demand of the fifth class against the estate. It further appears that said judgment was presented to said court and classified without • any notice to the administrator and without notice having been waived by mm. Further than this classifica*252tion it does not appear that it was allowed as a demand before it was classified.

The said judgment of the circuit court being void was nothing, and no right could be founded on it. Taking the most favorable view possible for plaintiff, and the one which his counsel insists is the correct one, viz.: that the classification of the judgment was equivalent to and was in fact a judgment of allowance, we must nevertheless hold the judgment of the probate court to be void for want of jurisdiction. While it had jurisdiction of the subject matter of demands against the estate in the case presented, it had no jurisdiction of the administrator, he neither having had notice of the presentation of the judgment nor having waived such notice.

Counsel insist that the judgment of the probate court should have been appealed from. How could the administrator appeal from a judgment rendered in a proceeding of which he had no notice ? Before the jurisdiction of the probate court could be brought into exercise in allowing a demand against the estate, the administrator should first have been brought before it by notice or waiver of notice as required by the statute.

3. -: -. The case of Walker v. North, 66 Mo. 458, has been cited as an authority to establish the fact that the service of the summons in the suit instituted in the St. Louis circuit court was a sufficient notice of the exhibition of the demand. In the case cited the note was taken before the probate court while in session, the executor appeared and waived all objections, and the allowance of the claim was simply postponed by the court because it was not then due. This, in connection with the other circumstances in that case, was held to be a sufficient exhibition of the demand. In the case in hand no step whatever was taken in the pi’obate court till after the rendition of the judgment by the circuit court of St. Louis county, which, as we have seen, had no jurisdiction; and the only step *253then taken was on the said judgment without notice to the-administrator.

Judgment affirmed,

with the concurrence of the other, judges, except Sherwood, O. J., who dissents.