148 Mo. App. 338 | Mo. Ct. App. | 1910
Plaintiff Mary E. Wright brought an action of replevin to the October term, 1907, of the circuit court of the city of St. Louis, against Lucy A. McFarland, describing the defendant in the caption of the case as Lucy A. McFarland, executrix of Charles W.
“Plaintiff states that on or about the first day of April, 1907, Charles W. McFarland departed this life, and that thereafter, to-wit, on the 22d day of April, 1907, letters testamentary were duly granted to Lucy A. McFarland, the defendant, by the probate court of the city of St. Louis, Missouri, and that thereupon defendant duly qualified as executrix and is now acting as such.”
After making that averment plaintiff proceeded to state she was the owner of and lawfully entitled to the possession of certain personal property, to-wit, seven promissory notes all signed by James Sexton, dated September 14, 1906, payable to William Dwyer, one for seventeen hundred dollars, due three years after date and bearing interest at the rate of eight per cent after maturity, and six for fifty-one dollars each, representing the interest on the principal note and falling due every six months after date; that said notes are endorsed in blank by the payee, William Dwyer. The petition further alleged plaintiff was the owner of a deed of trust of the same date as the notes, executed by said Sexton and conveying lots in the city of St. Louis to the trustee, William Dwyer, to secure the notes; alleged said notes and deed of trust were of the value of $2006; that they had been demanded of defendant; that defendant wrongfully detained them from plaintiff to the latter’s damage in the sum of one hundred dollars; wherefore plaintiff demanded judgment against defendant for the recovery of said property and one hundred dollars damages for the detention. On the filing of said petition a summons was issued from the office of the clerk of the circuit court, directed to the sheriff of the city of St. Louis, commanding him to summon Lucy A. McFarland, executrix of Charles W. McFarland, deceased, to appear before the judge of the circuit court on the first day of the next term, to be held
“That without delay you cause to be delivered to the said plaintiff the possession of said personal property, or at the election of plaintiff the value thereof, and that of the goods and chattels and real estate of the sáid Lucy A. McFarland, you cause to be made the aforesaid sums and costs, that you have the same before the judge of said court on the first Monday of February, next, to render to the said plaintiff the sums and costs aforesaid, and that you certify to said judge how you execute this writ, and have you then and there this writ.”
The execution was duly attested by the official signature of the clerk of the circuit court and the seal of the court. After receiving the writ the sheriff, July 7, 1909, levied the same on certain real estate belonging to Lucy A. McFarland in person and advertised it for sale. Afterwards, on July 22, 1909, at the December term, 1908, of the court, Lucy A. McFarland appeared and moved the court to recall and quash the execution, levy and proceedings therein, because they were irregular and not in conformity to law, assigning various reasons; among others, these: The execution was directed against her personally and her property, whereas the action was against her only as the executrix of Charles W. McFarland; the court had no jurisdiction to render the personal judgment on which the execution was issued; the execution was irregular because it sought to enforce relief in excess of what the petition prayed; was irregular because the claim was one of
The reason assigned by the court below for quashing the execution and setting aside the judgment, was that the entire record in the cause showed the action had been instituted against Lucy A. McFarland, not in her individual capacity, but as executrix of Charles W. McFarland, deceased, and hence the judgment against her personally for the value of the notes and deed of trust sought to be replevied was void. It will suffice to sustain the ruling if the judgment following the default was irregular, the application for relief having been made within the statutory period. Unquestionably the judgment was irregular, and perhaps void, if the action was against defendant in her representative and not her individual capacity; for if it was against her as executrix, no judgment for the value of the property should have been rendered against her personally and to be satisfied out of her personal assets instead of the assets of the estate she represented. [Laughlin v. McDonald, 2 Mo. 684; Ranney, Admr., v. Thomas, 45 Mo. 111.] The' contention of counsel for plaintiff is that notwithstanding defendant was described as executrix in the caption of the
The question we are directly concerned with and must decide is not whether this action will lie against the defendant in her representative capacity, but whether it was brought against her in that capacity; and we are discussing the former proposition simply as throwing light on the meaning of the petition and because counsel for plaintiff insist that under the cases they cite, the petition should be regarded as proceeding against defendant personally, since, as they argue, she could not be proceeded against as executrix. The petition contains no allegations that the property in question had been detained by the testator McFarland and had passed from his hands into defendant’s hands at his death. If that allegation had been made the intention would have been palpable to declare against defendant as executrix. But without it, this intention breathes from the averments. No one would say the petition
The judgment of the court below setting it aside is affirmed.