In re Estate of Jarboe

Decision Date30 March 1910
PartiesIN RE ESTATE OF M. W. JARBOE and IN RE PARTNERSHIP ESTATE OF M. W. JARBOE & SON, RALPH F. LOZIER, Administrator De Bonis Non of Both Estates, v. O. M. JARBOE, Appellant
CourtMissouri Supreme Court

Appeal from Carroll Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

Peak & Strother for appellant.

(1) The probate court has no power or authority to appoint a referee to hear and determine controversies pending before that court; and the stipulation signed by the parties and filed in these proceedings could not and did not confer upon said court such power and authority. Hence, the judgment rendered by the probate court upon the report of the referee was void and of no effect, and the circuit court committed error in overruling appellant's motion to dismiss said proceedings on account of want of jurisdiction in the probate and circuit courts. R. S. 1899, secs. 200, 202, 203; Kansas City v Graham, 147 Mo. 250; Ladd v. Forsee, 163 Mo 506; Caulk v. Blythe, 55 Mo. 293; Bradley v Woener, 46 Mo.App. 371; Morris v. Lane, 44 Mo.App. 1; Mangles v. Mangles, 6 Mo.App. 481; Smith v. Gilmore, 13 Mo.App. 155; 1 Woerner on Am Law of Adm. (2 Ed.), * 323, sec. 142. (2) Even if O. M Jarboe had presented in the probate court a bona fide claim, duly verified according to law, against either the individual estate of M. W. Jarboe or the partnership estate of M. W. Jarboe & Son, or both of said estates, he would have had the unquestioned right to dismiss all of such claims; and when he filed a written dismissal of such claims in the probate court, such dismissal carried with it the pretended counterclaims and set-offs filed in such court by the administrator of the individual estate of M. W. Jarboe and of the partnership estate of M. W. Jarboe & Son, against O. M. Jarboe; thus leaving the probate court without jurisdiction to render judgment upon said counterclaims and set-offs; hence, its judgment was null and void, and the circuit court committed error in overruling appellant's motion to dismiss such proceedings and in overruling appellant's motion to set aside the judgment rendered by the circuit court. Emery v. Railroad, 77 Mo. 339; Atkinson v. Carter, 101 Mo.App. 477; Morrison Mfg. Co. v. Roach, 104 Mo.App. 632; Cauley v. Truitt, 63 Mo.App. 356; Garver v. Richardson, 77 Mo.App. 459; Smith v. Jacobs, 77 Mo.App. 254; Abernathy v. Moore, 83 Mo. 65. (3) But inasmuch as neither O. M. Jarboe nor H. M. Jarboe nor Van Trump presented any claims whatever to the probate court, against either the individual estate of M. W. Jarboe or the partnership estate of M. W. Jarboe & Son, the probate court was plainly without jurisdiction to entertain a suit by the administrator of either of said estates against either of said parties or to render a judgment against them. (4) Neither the probate court nor the circuit court had power, authority or jurisdiction to render a judgment in favor of the individual estate of M. W. Jarboe against the partnership estate of M. W. Jarboe & Son, for an alleged balance claimed to be due said M. W. Jarboe from said partnership estate; nor to render a judgment in favor of said partnership estate against O. M. Jarboe for an alleged balance claimed to be due from said O. M. Jarboe to said partnership estate, prior to a settlement of said partnership estate, and hence both of said judgments rendered by the circuit court are null and void. Bredell v. Baldwin, 27 Mo. 103; Leabo v. Renshaw, 61 Mo. 292; Jones v. Shaw, 67 Mo. 667; Bambrick v. Sims, 102 Mo. 158; Ross v. Carson, 32 Mo.App. 148; Story on Partnership (5 Ed.), sec. 348a; Scudder v. Ames, 142 Mo. 187; Browning v. Richardson, 186 Mo. 361; Roberts v. Hendrickson, 75 Mo.App. 484. (5) (a) The administrator of the individual estate of M. W. Jarboe could not at the same time prosecute and defend a claim in his favor as such administrator, against himself as administrator of the partnership estate of M. W. Jarboe & Son, and the proceedings on such claims are void. R. S. 1899, sec. 205; State v. Bidlingmaier, 26 Mo. 483, 31 Mo. 95; Clark v. Crosswhite, 28 Mo.App. 34. (b) O. M. Jarboe as surviving partner was entitled to an appeal from the allowance in favor of the individual estate against the partnership estate. R. S. 1899, sec. 66; State v. Geiger, 45 Mo.App. 111; Smith v. Jacobs, 77 Mo.App. 254; Nenno v. Railroad, 105 Mo.App. 540. (6) Even had there been pending in the probate court any claims and counterclaims so as to give such court jurisdiction of them, it had no power, jurisdiction or authority to abdicate its functions, and to become the mere clerk and recorder of a so-called referee as was attempted to be done in this case. These courts are of limited jurisdiction, and that jurisdiction must be exercised in the cases, at the times and in the manner provided by law. They cannot, even with consent of parties, assume jurisdiction where the law has not granted it, nor can they, with or without such consent, delegate their jurisdiction to tribunals created by the whims and fancies of parties and their counsel, which are contrary to the plain letter of the law governing them. The law provides that "probate courts, in the exercise of their jurisdiction, shall be governed by the statutes in relation to administration, to guardians and curators of minors and persons of unsound mind, to apprentices, and such laws as may be enacted defining and limiting the practice in said courts." R. S. 1899, sec. 1765. In the face of these plain provisions of the governing statutes, and in the utter absence of any applicatory statute even giving color to the contentions of respondent, we do not see how it can be seriously asserted for a moment, that the proceedings in this case can be upheld. That they cannot be, is abundantly shown by the authorities cited. In addition, we cite the case of Powers v. Blakey, 16 Mo. 437. (7) There were no claims or counterclaims presented against these estates and parties and pending in the probate court in such form as to give that court jurisdiction of them. Notwithstanding the recitals of the agreement for a reference, and notwithstanding the long catalogue of "claims and counterclaims," almost exhausting the alphabet, so industriously paraded in respondent's statement, the record is absolutely barren of any claim of any kind or character whatever by either Van Trump or H. M. Jarboe against either the individual or partnership estates. The theory that they had any claims seems to have been devised solely for the purpose of enabling the administrator to present his alleged counterclaims against them, and thus give the probate court some color of jurisdiction over such alleged counterclaims, which otherwise it would not have. It needs no argument to show that jurisdiction could not be conferred on this court of limited jurisdiction, by any such fiction as this. On this record, therefore, the judgment against H. M. Jarboe for $ 22.97 and against Van Trump for $ 127.75 on these alleged counterclaims is void, and the whole judgment of the circuit court is erroneous. In addition, the alleged claims of O. M. Jarboe were in fact not claims at all within the meaning of the law providing for the presentation of claims and demands against the estates of decedents. It is clearly implied from the statutes governing such matters that such claims are those where the claimant asserts that the estate owes him money, for which he asks the court to render a money judgment. The statute provides that "the court shall not allow any demand against any estate unless the claimant first make oath in open court, or file his affidavit with such claim, stating to the best of his knowledge and belief that he has given credit to the estate for all payments and off-sets to which it is entitled, and that the balance claimed is justly due; nor any credit in favor of any person indebted to such estate, unless the person seeking such credit shall make an oath in open court, or file his affidavit stating that he has given credit to the estate for all payments and off-sets to which it is entitled, and that his account or demand, as presented, is correctly stated." R. S. 1899, sec. 195. The alleged claims of O. M. Jarboe did not claim any debt due him, did not ask any judgment against the estate, and were not sworn to, either in open court or by affidavit, as required by the statute. They stated that "claimant here asks that the following items be charged and added to the debit side of the account of M. W. Jarboe deceased, on his account with the late firm of M. W. Jarboe & Son on the books of said firm, being account A. and B. as follows," setting out the items. Even had it been a claim within the meaning of the law, the probate court acquired no jurisdiction to allow it, because it affirmatively appears from the record that it was not sworn to in open court, nor was it accompanied by the statutory affidavit. Fitzpatrick v. Stevens, 114 Mo.App. 497; Baldwin v. Whitcomb, 71 Mo. 651; Bick v. Tanzey, 181 Mo. 515. It is upon the pendency of this claim of O. M. Jarboe that the socalled counterclaim against him, and the judgment rendered thereon must rest. If the probate court had no jurisdiction of the claim, then the counterclaim has nothing to rest on, and must fall for want of support; and the judgment of the circuit court is erroneous and must be reversed. (8) Respondent need not have cited the cases in his brief to maintain that cases may be referred by consent in courts of general jurisdiction. All he needed to do was to cite or quote section 697, Revised Statutes 1899, which provides that "all or any of the issues of fact in the action may be referred upon the written consent of the parties." But neither this statute nor the cases cited by respondent have any...

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