Wilson v. Wilson

255 Mo. 528 | Mo. | 1914

OPINION.

BOND, J.

Homestead: Decedent’s Debts. (After stating the facts as above).— At the time when W. H. Wilson died and at the time of the sale of the real estate on which he had established a homestead, by the administrator °f estate, there was a statute in this State (R. S. 1889, sec. 5439) declaratory of the right of creditors to enforce their claims in the course of administration of a decedent’s estate by selling the same subject to the homestead rights of the widow and minor children. [Robbins v. Boulware, 190 Mo. 33; Keene v. Wyatt, 160 Mo. 1; Anthony v. Rice, 110 Mo. 233; Bunn v. Lindsay, 95 Mo. 250; Crisp v. Crisp, 86 Mo. 630.]

When the present action was brought, the widow of W. H. Wilson had died and his youngest children, the two plaintiffs, had attained their majority, and there was no person in existence who had any homestead rights in this property. It follows that the count of the petition set forth in the statement above, stated no cause of action in them, on the theory that the sale decreed by the probate court was a nullity or prejudicial to any rights accruing to plaintiffs under the homestead law in vogue when that sale was made.

II.

Judgment Probate court The learned counsel for respondents practically ■concedes in his brief that the judgment in their favor below cannot be upheld upon the specific attack made in their petition upon the proceeding’s in the probate court through which appellant acquired title. But they suggest that there are other grounds, not alleged in the petition, which would suffice to sustain the judgment of the circuit court and permit us to affirm it. The grounds thus suggested are, to-wit: (1), That the proceedings of the probate court disclose that its order to sell the land ■of "VY. PI. Wilson was made before any debts were allowed against his estate; (2), That the heirs who were residents of Dunklin county were not served with notice; (3), That the order made by the probate court requiring notice to them is defectively worded.

The first answer to all of these contentions is that the record and proceeding’s of the probate court, which were introduced in evidence, disclose on their face that all the steps taken in that court were regular and in conformity to the rules of law governing its action. Administration was duly taken out; claims were duly presented; a petition was filed for the sale of lands to pay debts; due notice was ordered to be given as prescribed by law; a sale was made in conformity with the directions of the probate court and duly reported and confirmed by the court; and a deed, regular in all respects, was made to the purchasers. There does not appear in any part of-the proceedings or in the files constituting the records of the county court, any fact or recital which ousted that court of jurisdiction of the cause or the parties to be affected or the res.

The rule is now weH settled that the judgments of such courts in administration matters are entitled to all the presumption given by law to the judgment of a court of general jurisdiction, and where they are regular on their face and do not disclose lack of jurisdiction in any of the proceedings, such judgments are impervious to collateral attacks. [Desloge v. Tucker, 196 Mo. l. c. 601; Robbins v. Boulware, 190 Mo. l. c. 51.) Nor are they open to a direct attack in equity except by a petition which alleges some recognized ground for annulment of the judgment under the rules governing courts of equity.

To overcome the presumption of jurisdiction attached to the proceedings and judgments of the probate courts arising from their recitals of jurisdiction contained in its records and their silence as to any matters disclosing their want of jurisdiction, it was incumbent on plaintiffs to set forth in their petition the specific grounds for annulling the proceedings in the probate court. Instead of alleging that the probate court was without jurisdiction of the persons of the plaintiffs, the petition charges that the action of the probate court was void for another reason, which it has been shown did not invalidate it. Moreover during the trial there was no proof in pais that the plaintiffs were not notified of the proceedings in the probate court.

Nor is there any merit in the contention that the publication ordered by the court was defective. It simply required the person named to appear “before” instead of “at” the day fixed in the order. That was merely a harmless.irregularity which did not go to the jurisdiction of the court.

Nor is there any merit in the suggestion that there were no debts against the estate. The record and proceedings state to the contrary, and the fact that the probate court granted a rehearing of the demands allowed, does not militate against the statements of its record that they existed, nor tend to show that they were disallowed on the rehearing. But none of these contentions were alleged in plaintiffs’ petition, and neither in equity nor in legal action, can there be any recovery on unpleaded causes of -action. And in neither forum will a judgment be sustained when it was rendered on a totally different cause of action than any comprehended within the allegations of the petition in the cause. [Newham v. Kenton, 79 Mo. 382; Kilpatrick v. Wiley, 197 Mo. l. c. 163; Milliken v. Commission Co., 202 Mo. l. c. 654; Black v. Early, 208 Mo. l. c. 313.]

The result is that the judgment in this case is reversed and the cause remanded.

All concur.