Wagoner Undertaking Co. v. Jones
| Decision Date | 01 December 1908 |
| Citation | 114 S.W. 1049,134 Mo.App. 101 |
| Parties | WAGONER UNDERTAKING COMPANY, Respondent, v. JONES, Executor SCANNELL, Deceased, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Wm. M. Kinsey Judge.
Reversed and remanded.
Morrow & Kelley for appellant.
(1) The original affidavit to the claim, in probate court, the amended affidavit and the oral affidavit taken during the trial in circuit court were insufficient to give the court jurisdiction. They are not even a substantial compliance with the statute. It is not stated in any of them that the agent Geo. C. R. Wagoner, who made them had the management and transaction of the business out of which such demand originated or had the means of knowing personally the facts required to be sworn to by section 195, Revised Statutes 1899, as required by section 196, Revised Statutes 1899. This the statute requires in terms. The statutory affidavit is a condition precedent to jurisdiction in the probate court. R S. 1899, secs. 195, 196; Peter v. King, 13 Mo. 143; Jenkins v. Morrow (Mo. App.), 109 S.W. 1051; Dorn v. Parsons, 56 Mo. 602; Wernse v. McPike, 100 Mo. 476; Wine Co. v. Caspari, 11 Mo.App. 384; Williams v. Gerber, 75 Mo.App. 30; Waltemar v. Schnick, 102 Mo.App. 137; Fitzpatrick v. Stevens, 114 Mo.App. 502. (2) The original affidavit did not even state that it was made by an agent. It is an absolute nullity on its face and was made by a party incompetent in law to make it. It is the same as if none had been made. The probate court did not get jurisdiction and this cannot be supplied by amendment in the circuit court on appeal. Turner v. Bondalier, 31 Mo.App. 582; Madkins v. Trice, 65 Mo. 656; Gist v. Loring, 60 Mo. 487; Haggard v. Railroad, 63 Mo. 302; Webb v. Tweedie, 30 Mo. 488; Johnson v. Fischer, 56 Mo.App. 553. (3) This matter must not be confounded with the right of amendment on appeal from a justice of the peace of pleadings to supply a jurisdictional averment which is allowed by an express statute passed for that purpose. This right did not exist until the statute was passed. Mitchell v. Railroad, 82 Mo. 106; Vaughn v. Railroad, 17 Mo.App. 8; Planing Mill Co. v. Ritter, 33 Mo.App. 409; Dowdy v. Wamble, 110 Mo. 280; R. S. 1899, sec. 4079. (4) The court erred in refusing to permit defendant to cross-examine plaintiff's witness as to the elements which go to make the market value of the articles in question, including cost in the market to plaintiff and others and profit made on them. Jones on Evidence, sec. 826; Wells v. Kelsey, 37 N.Y. 143. (5) Defendant had a right to show what the articles in question cost plaintiff, and also the reasonable market price to the retailer in St. Louis at the time of the sale. It is evidence of value. The court erred in excluding this evidence. State ex rel. v. Steele & Co., 108 Mo.App. 363; Story & Clark v. Gibbons, 96 Mo.App. 222; Miller v. Bryden, 34 Mo.App. 602; Stevens v. Springer, 23 Mo.App. 375; Markowitz v. Kansas City, 125 Mo.App. 375; Jones on Evidence, sec. 165; Luse v. Jones, 39 N.J. L. 707; Robinson v. Lewis, 27 N.Y.S. 989; Akers v. New York, 35 N.Y.S. 1099; Hawver v. Bell, 141 N.Y. 143; Wells v. Kelsey, 37 N.Y. 146. (6) The cost of manufacturing the articles may be shown and the court erred in excluding defendant's evidence as to the cost of making a casket like the one in question. Matthews v. Railroad, 142 Mo. 666; Conner v. Railroad, 181 Mo. 397; Brizsee v. Maybee, 21 Wend. (N.Y.) 144.
Henderson & Becker for respondent.
(1) The affidavit required by section 185, Revised Statutes 1899, may be made orally in the probate court and is never noted on the record; and it will, in the absence of proof, be presumed to have been made and that the court had jurisdiction. Insurance Co. v. Linchey, 3 Mo.App. 588; Million v. Ohusorg, 10 Mo.App. 437; Kinchelor v. Gorman, 29 Mo. 421; Wood v. Flanery, 89 Mo. 632. (2) Even though there had been proof adduced by defendant upon his plea to the jurisdiction to the effect that there had been no oral affidavit made in the probate court, yet the written affidavit appended to the demand itself was sufficient, and the defect, if any contained therein could have been rectified on the trial de novo before the circuit court. Woerner, Adm. Law, p. 808; Kinchelor v. Gorman, 29 Mo. 421; Shaw, Admr., v. Groomer, 60 Mo. 497; Wood v. Flanery, 89 Mo.App. 642; Dawson v. Wombles, 104 Mo.App. 275. (3) The widow of a deceased person is a proper party to order a funeral as administrator is ordinarily not appointed until after the funeral. Hayden v. Maher, 67 Mo.App. 436. (4) "Market value" is the price at which the owner of goods, or the producer, holds them for sale, the price for which they are freely offered in the market to all the world. Such price as dealers in the goods are willing to receive and the purchasers are made to pay, when the goods are bought and sold in the ordinary course of trade. Muser v. Magone, 155 U.S. 240; Cliquot v. U.S. 70 U.S. 114; Parlin & Orendorf Co. v. Boatman, 89 Mo.App. 43. (5) The competency of an expert witness is for the court, but it is the exclusive province of the jury to determine the credibility and weight of said evidence, which it should consider in connection with all the other evidence in the case; but they hove no right to disregard such testimony. Ristetsky v. Delmar Co., 106 Mo.App. 382; Johnson v. Kahn, 97 Mo.App. 628; Buckalen v. Quincy Co., 107 Mo.App. 575.
1. This case involves a demand against the estate of Alfred Scannell, deceased, for the expenses incident to his interment, which was conducted by plaintiff. As originally presented in the probate court, the demand was thus verified:
When the case came on to be heard in the circuit court where it had gone on appeal, a plea to the jurisdiction of both courts was preferred because it did not appear the demand was verified by an agent of the claimant. The court overruled this plea and gave leave to file an amended affidavit, which was made by Geo. C. R. Wagoner, as president of the company; who also made an oral affidavit in the circuit court, wherein he said that, to the best of his knowledge and belief, the Wagoner Undertaking Company had given credit to the estate of Alfred Scannell, deceased, for all payments and offsets, and plaintiff's demand was justly due.
1. In Dawson v. Wombles, 104 Mo.App. 272, 78 S.W. 823, we passed on the right of a claimant against an estate to amend in the circuit court an affidavit so as to show it was made by an agent, and cited two decisions construing statutes like our own in support of the right. [Walker v. Wigginton's Admr., 50 Ala. 579; Chadwell v. Chadwell, 98 Ky. 643, 33 S.W. 1118; also Woerner's Ad. Law, *808.] Though the subject was not enlarged on in the opinion, it was investigated carefully, and a second investigation has convinced us the decision was right. It has been held the verification of a claim against an estate is jurisdictional to this extent: the claim cannot be allowed or evidence in proof of it admitted until it is verified. [Peter v. King, 13 Mo. 143; Dorn v. Parsons, 56 Mo. 601; Fitzpatrick v. Stevens, 114 Mo.App. 497, 89 S.W. 897.] But we think the fact that an affidavit is defective because it fails to state the affiant was the agent of the claimant does not prevent the jurisdiction of the probate court from attaching, so as to permit an amendment there or in the circuit court, and that such an unverified demand against an estate stands on a different footing from a complaint in a forcible entry and detainer suit, or an affidavit in a replevin action, which have been held not amendable so as to show jurisdictional facts omitted in the first instance. [Turner v. Bondalier, 31 Mo.App. 582; Johnson v. Fischer, 56 Mo.App. 552.] The statute allows claims against estates to be verified either by affidavit or by oath in open court; and this being the law if a written affidavit is filed from which a requisite fact is omitted, the fact may be supplied by an oral oath, which need not be noted in the record. [Kincheloe v. Gorman's Admrs., 29 Mo. 421.] It is apparent, therefore, the verification of a demand is not so far jurisdictional that facts required to be stated in it must appear of record. The agency of the affiant in the present case may have been orally proved in the probate court, and the circuit court could presume this was done, unless the contrary was proved. [Merchants, etc., Co. v. Linchey, 3 Mo.App. 588; Million v. Ohnsorg, 10 Mo.App. 432; Kincheloe v. Gorman's Admrs., 29 Mo. 421; Wood v. Flanery, 89 Mo.App. 632.] And why should it be held wrong for said court to allow an amendment to be inserted in an affidavit to a claim, in order to show jurisdiction in the probate court, if it might presume, in favor of the latter court's jurisdiction, the fact to be shown in the amendment was proved by word of mouth? This reasoning is enforced by our statute, which says, the upper court, on the filing of a transcript in an appeal like this one, "shall be possessed of the cause and shall proceed to hear, try and determine the same without regarding any error, defect or imperfection in the proceeding in the probate court." [R. S. 1899, sec. 285.]
2. An exception was saved to the admission in evidence of a bill of particulars showing the size, style and price of the casket number and cost of funeral notices, carriages, crepe, gloves and other items. This account was proved to have been taken from plainti...
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