86 Mo. 565 | Mo. | 1885
— It appears from the record in this case that Abraham McPike was the endorser on a note for three thousand dollars, dated the twenty-third of December, 1872; that he died before the maturity of the note, and letters of administration were granted on his estate to defendant, H. C. McPike, on the twenty-eighth day of January, 1873,- by the probate court of Ralls county ; that payment of said note was, at its maturity, demanded, which being refused, it was duly protested, of which the defendant as administrator was duly notified ; that thereafter suit was instituted in the circuit court of St. Louis county on said note against said defendant as said administrator, and all other parties thereto, of which said administrator had personal notice, by service upon him of a copy of the petition and note; that final judgment was afterwards rendered in said cause against all the parties; that thereafter, at the April term, 1874, of the probate court of Ralls county a copy of said judgment was presented for classification
It also appears that on the nineteenth day of March, 1879, plaintiffs gave defendant a written notice containing a copy of the said note, notifying him that on the second Monday of May, 1879, they would present the said note for allowance against the estate. The probate court held that the said claim was barred by limitation, and refused to allow it; which judgment, on appeal to the Ralls county circuit court, was affirmed, and' it is from this judgment that plaintiffs prosecute their writ of error, and the sole question presented for determination is whether, under the facts and circumstances of this case, the administrator can interpose the statutory bar of limitation, and whether, in contemplation of law, the demand of plaintiffs was exhibited to the administrator within two years after letters were granted, and presented to the probate court for allowance within three years after grant of such letters.
-The law in force at the time the proceedings were had in this case is to be found in sections two, five, six and fifteen, Wagner’s Statutes, volume 1, pages 102,104. Section two provides that all demands not exhibited within two years shall be barred. Section five provides that any person may exhibit his demand by serving the
The facts disclosed by the record show that soon after the protest and within the first year of the administration, suit was instituted upon the note in the circuit court of St. Louis county, of which the administrator was notified, which terminated in a judgment against him; that this judgment was thereafter, in 1874, and within two years after the grant of letters, presented to the probate court of Ralls county for classification and put in the fifth class of demands. This judgment and classification was treated by the administrator and the plaintiffs as a valid proceeding, and was in good faith relied upon till in 1877, when plaintiffs instituted a proceeding in said probate court for its payment, the administrator appeared and resisted the payment on the ground that the judgment rendered by the circuit court of St. Louis county was void, because said court had no jurisdiction of it, and that the classification of such judgment was, therefore, a nullity. The point thus made was sustained by the probate court, and on appeal to the circuit court the action of the probate court was approved by the judgment of said circuit court rendered in 1879; which judgment on appeal to this court was affirmed at its Oo
During these proceedings plaintiff filed in the probate court the following notice:
“ To H. O. McPike, Administrator of Abraham McPike :
“ Take notice that we are the owners and holders of a note, described in the words and figures as follows :
“ St. Louis, December 23, 1872.
“ Sixty days after date we promise to pay to the order of A. McPike, three thousand dollars, for value received, payable at the Traders’ Bank, St. Louis, with 10 per cent, interest per annum from maturity.
“Leiper, Bowling & Company.
“Which note was endorsed by A. McPike and by Leiper, Bowling & Company, and was protested by Wm. Hammel, notary public, Pebuary 24, 1873, and which note was shown and exhibted to you prior to August, 1873, and which note was sued upon in the circuit court of St. Louis county, state of Missouri, on March 19, 1873, in favor of Traders’ Bank, against the makers and yourself, as administrator of Abraham McPike, and a copy of the petition, containing a full description of said note, was served upon you, with a copy of writ, July 5, 1873, by sheriff of St. Louis county, Missouri, and in which case judgment was, subsequently, on October 16, 1873, by said court rendered against all the defendants ; and which judgment was, subsequently, on April 15, 1874, duly presented to the Ralls county probate court, and then and there entered and allowed as a fifth-class demand against said Abraham McPike’s estate, from which no appeal was ever taken, and which judgment has since been assigned to us and said note delivered to us, and we are now the legal holders and owners of said note and judgment in*571 the circuit court oí St. Louis county, and the classification by the probate court oí Ralls county, we do hereby give you notice that we will, on second Monday of May, 1879, or as soon thereafter as we can be heard, present to-the probate court of Ralls county, Missouri, the above-described original note for allowance against the said estate of Abraham McPike.
“ Yours,
■ “Herman A. Haetjssler,
“ Henry H. Wernse.”
In view of the facts disclosed by the record before us, viz. : that letters of administration were granted defendant on the twenty-eighth of February, 1873'; that the note was protested, of which defendant was duly notified soon after he qualified as administrator; that defendant was served on the fifth of July, 1873, with a copy of the-writ, petition and note in the action commenced on said note in the circuit court of St. Louis county ; that judgment was rendered in said suit in October, 1873, which, on the fifteenth of October, 1874, with a full copy of the proceedings in said suit, including a copy of the note, with proper affidavit, was presented to the probate court in the presence of defendant, and put in the fifth class of demands; that such action of the court in classifying the demand was not questioned by the administrator till in 1877, when plaintiffs sought to enforce its payment, but on the contrary its validity was recognized by him, by his filing on the fourteenth day of November, 1875, in the probate court for an order for the sale of real estate to pay the debts against the estate, among which was included in his petition the judgment of plaintiffs as classified; and it was, also, further recognized by several letters of defendant in evidence written to one of plaintiffs between the thirtieth of June, 1876, and November, 1876, from which it appears that plaintiffs were urging payment, and defendant was asking in-
In the case last cited an administrator presented to the probate court a claim against the estate of which he was the administrator; the court passed upon it and allowed it against the estate without appointing a suitable person to appear and manage the defence, as the statute required. Four years afterwards the error in the allowance being discovered, the claim being again called up for allowance was rejected on the ground that it was barred by statute. This judgment of the probate court was reversed by this court, it being observed in the opinion : “ The first proceeding, so far as the judgment was concerned, was clearly irregular, and perhaps void. But it does not necessarily follow that it will in no manner avail the plaintiff. It shows that he acted
Under this ruling the notice given in March, 1879, during the pendency of the litigation growing out of the proceedings had in the probate court in 1874, may be regarded as an amendment by the substitution of the note as the basis of the demand, instead of the judgment rendered upon it by the St. Louis county circuit court. So in the case of North v. Walker, supra, while the statute was not in strict letter complied with, it was held that the statutory bar would not apply, inasmuch as in substance and spirit it-had been complied with.
Judgment reversed and cause remanded, to be proceeded with in conformity to this opinion.