13 S.W. 809 (Mo. 1890), Wernse v. McPike

Citation:13 S.W. 809, 100 Mo. 476
Opinion Judge:Sherwood, J.
Party Name:Wernse et al. v. McPike, Administrator, Appellant
Attorney:Silver & Brown for appellant. D. H. McIntyre with J. O. Broadhead for respondent.
Judge Panel:Sherwood, J. Judge Brace not sitting; Ray, C. J., and Black, J., concur; Barclay, J., in reversing and remanding.
Case Date:May 19, 1890
Court:Supreme Court of Missouri
 
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Page 809

13 S.W. 809 (Mo. 1890)

100 Mo. 476

Wernse et al.

v.

McPike, Administrator, Appellant

Supreme Court of Missouri

May 19, 1890

Appeal from Ralls Circuit Court. -- Hon. Theodore Brace, Judge.

Reversed and remanded.

Silver & Brown for appellant.

(1) The judgment of the circuit court of St. Louis county on the note was void, and its classification in the probate court of Ralls county, and all the proceedings in reference to it in said court nullities. Wernse v. McPike, 76 Mo. 249. (2) The note was not presented to the probate court for allowance and notice thereof to the administrator until May, 1879, more than six years after the grant of letters, and the demand was barred by the statute. 1 Wag. Stat., p. 102, secs. 2, 5 and 6, and p. 104, sec. 15; Garesche v. Lewis, 93 Mo. 197; Pfeiffer v. Suss, 73 Mo. 245; Burton v. Rutherford, 49 Mo. 258; Richardson v. Harrison, 36 Mo. 96; Bryan v. Mundy, 14 Mo. 458; Wernse v. Hall, 101 Ill. 423. (3) After the bar of the statute had attached, the administrator could not, by any recognition or acknowledgment of the demand, remove the bar or revive the claim. Smarr v. McMaster, 35 Mo. 351; North v. Walker, 66 Mo. 463; Cape Girardeau County v. Harbison, 58 Mo. 90. (4) Proceedings on demands in probate courts are actions at law and allowances are judgments at law, and principles applicable to suits in equity cannot be invoked in this action. Smith v. Sims, 77 Mo. 269; Bauer v. Gray, 18 Mo.App. 164. (5) The judgment of the circuit court of Madison county, Illinois, on appeal from the county court of said county, and of the appellate and supreme courts of said state, were a bar to any further prosecution of the demand in the courts of this state, and it is, therefore, res judicata. Const. of U.S. art. 4, sec. 1; Mills v. Duryee, 7 Cranch, 4 Hampton v. McConnell, 3 Wheat. 234; McElmoyle v. Cohen, 13 Pet. 312; 1 Grlf. Ev. [Redf. Ed.] sec. 534 and note; 2 Kent's Com. [11 Ed.] top pp. 96, 97; Cffutt v. John, 8 Mo. 120; Bigelow on Estoppel [4 Ed.] 37; 1 Herman on Estoppel, secs. 99, 100, 111; Freeman on Judgments, sec. 272; Embury v. Conner, 3 Comstock, 522; Louis v. Brown Township, 109 U.S. 167; Caldwell v. White, 77 Mo. 471; Shelbina, etc., v. Parker, 58 Mo. 327; Wells on Res Adjudicata, sec. 530, p. 471; Bank v. Brown, 50 Me. 214; Whiting v. Burger, 78 Me. 287; McGilroy v. Avery, 30 Vt. 538; Rogers v. Odell, 39 N.H. 452; Goodall v. Marshall, 14 N.H. 161; Lomas v. Hilliard, 60 N.H. 148.

D. H. McIntyre with J. O. Broadhead for respondent.

(1) The court committed no error in refusing the first instruction asked by defendant, to the effect that plaintiff's demand was barred by the statute. The notice served on the defendant March 19, 1879, pending the litigation was an amendment of the notice previously given by the substitution of the note in the place of the judgment of the St. Louis circuit court, as the basis of the demand. It was, therefore, a substantial compliance with the statute, and fulfilled its requirements. Tevis v. Tevis, 23 Mo. 256; Fenn v. Dugdale, 31 Mo. 580; Williamson v. Anthony, 47 Mo. 299; North v. Walker, 66 Mo. 453; Boone v. Shackelford, 66 Mo. 493; Wernse v. McPike, 86 Mo. 565. (2) Plaintiffs have acted with perfect good faith from the beginning, and have persevered in a diligent effort to have their claim allowed, and in common justice they are entitled to an affirmance of their judgment. Williamson v. Anthony, 47 Mo. 299. (3) The judgment of the St. Louis circuit court was presented for allowance and classification to the Ralls county probate court on April 15, 1874, less than fifteen months from the date of publication of the letters, the administrator was personally present in court, and made no objection to the classification and allowance of the demand. He cannot, therefore, now consistently, with good faith and justice, be heard to make an objection which he could have made at that time, but did not. Boone v. Shackelford, 66 Mo. 493; Van Renselar v. Kearney, 11 How. 297; Buckingham v. Hanna, 2 Ohio St. 551; 2 Sm. Lead. Cases [7 Am. Ed.] 672. (4) (a) The judgments of the Illinois courts could have rested upon the other grounds stated in the defendant's motion in the Madison county court to dismiss plaintiff's petition, and revoke the letters of administration, and was in fact expressly so done, by the circuit court. Wells Res. Adjudicata, sec. 226; Burlen v. Shannon, 99 Mass. 202; Dickinson v. Hayes, 31 Conn. 423; Jackson v. Wood, 3 Wend. 27; Lawrence v. Hunt, 10 Wend. 80. (b) There is no res adjudicata, because it does not appear that the finding and judgment of the circuit court necessarily involved the statute of limitations. Packet Co. v. Sickles, 5 Wall. 592; Wells, Res Adjudicata, sec. 3. (c) It does appear that it could have been and was decided without involving limitation. Packet Co. v. Sickles, 5 Wall. 592; Wells, Res Adjudicata, sec. 12. (5) Res judicata cannot be urged in this case for the reason that the service on the administrator of the amended notice of March 19, 1879, and the proceedings thereon in the probate court, the Ralls county circuit court, and the supreme court of this state, make a case essentially different in its issues and facts, from the case presented in the Illinois courts. Spurlock v. Railroad, 76 Mo. 67. (6) When there is a decision and reversal, and after a second trial the cause comes up on a second appeal, the court will not reconsider, nor, in general, even enlarge upon or explain the reasons which induced the decision before announced. Wells, Res Adjudicata, sec. 617; Kibler v. Bridges, 5 S.C. 335; Chouteau v. Gibson, 76 Mo. 38; Keith v. Keith, 97 Mo. 223.

Sherwood, J. Judge Brace not sitting; Ray, C. J., and Black, J., concur; Barclay, J., in reversing and remanding.

OPINION

Page 810

[100 Mo. 480] Sherwood, J.

-- The Traders' Bank of St. Louis held a note for thirty-two hundred dollars made by Leiper Bowling & Co., and indorsed by Abraham McPike. Abraham McPike died, and Henry C. McPike qualified as administrator of his estate, in the probate court of Ralls county, January 28, 1873. The note being unpaid was duly protested, and the bank brought suit on it in the circuit court of St. Louis county against Leiper Bowling & Co. and Henry C. McPike, administrator. The former resided and the latter was found, and all were personally served in St. Louis county on the fifth of July, 1873. In due time judgment by default was entered against all the defendants October 16, 1873. Thereupon a transcript of the record was filed in the probate court of Ralls county, and the administrator being present, as the record recites, the judgment was duly exhibited and placed in the fifth class on the fifteenth of April, 1874, from which classification no appeal was taken.

The administrator subsequently filed a petition for an order of sale of the realty, to pay debts, and in that petition included in the list of allowed demands this claim as due by and established against the estate as a fifth-class demand. The judgment was subsequently assigned to plaintiffs, Wernse and Haeussler. The administrator having failed to pay any part of it...

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