In re Phillips' Estate

• Decision Date: 12 April 1948
• Docket Number: 40497
• Parties: In the Matter of the Estate of Harry A. Phillips, Deceased: Robert D. Fizette, Carter E. Fizette and Helen Fizette Hilsinger v. Rawlins Phillips; Mutual Commerce Casualty Company, a Corporation, (for whom Owen G. Jackson, Superintendent, Division of Insurance Department of Business and Administration of the State of Missouri, has been substituted), Appellant
• Court: Missouri Supreme Court

211 S.W.2d 728

357 Mo. 947

In the Matter of the Estate of Harry A. Phillips, Deceased: Robert D. Fizette, Carter E. Fizette and Helen Fizette Hilsinger v. Rawlins Phillips; Mutual Commerce Casualty Company, a Corporation, (for whom Owen G. Jackson, Superintendent, Division of Insurance Department of Business and Administration of the State of Missouri, has been substituted), Appellant

No. 40497

Supreme Court of Missouri

April 12, 1948

Rehearing Denied May 27, 1948.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Moss H. Silverforb and Chas. N. Sadler for appellant.

(1) The judgment against Robert D. Fizette, Helen Fizette-Hilsinger and Lee Ticehurst, surety upon which the judgment against Mutual Commerce Casualty Company, appealed from herein, is based, is void on its face for failure to dispose of all the issues as to Carter E. Fizette, a party to said action. A judgment to be valid and final must dispose of all the issues, and all the parties; otherwise, no appeal will lie therefrom. Ray v. Missouri Christian College, 93 S.W.2d 1030; Hill-Behan Lumber Co. v. Hammer Dry Plate Co., 162 S.W.2d 348; Stephens v. D.M. Oberman Mfg Co., 70 S.W.2d 899; Rock Island Implement Co. v. Marr, 67 S.W. 586; Severs v. Williamson, 198 S.W.2d 368; Ford v. Ford, 24 S.W.2d 990; Crow v. Crow, 100 S.W. 1123; Boden v. Johnson, 23 S.W.2d 186; Evans v. St. Louis, 198 S.W.2d 9. (2) Such judgment may be attacked collaterally. Spangler-Bowers v. Benton, 83 S.W.2d 170; Abernathy v. Missouri Pacific Ry. Co., 228 S.W. 486. (3) The probate court is without power to set aside a judgment or order upon a motion filed at a subsequent term. Smoot v. Smoot, 61 S.W.2d 373; Edwards v. Edwards, 66 S.W.2d 969; Conant v. Conant, 278 S.W. 90. (4) The circuit court was without jurisdiction to render a judgment against Robert D. Fizette, Helen Fizette-Hilsinger and Lee Ticehurst surety because its jurisdiction is based upon the validity of the judgment of the probate court rendered May 1, 1943, which judgment of the probate court was void for lack of power to set aside a former judgment upon a motion filed at a subsequent term, and while an appeal therefrom by Rawlins Phillips was pending in the circuit court. Federal Chemical Co. v. Farmers Produce Exchange, 118 S.W.2d 1067; Pence v. K.C. Laundry Service Co., 59 S.W.2d 633; United Cemeteries Co. v. Strother, 119 S.W.2d 762. (5) The judgment of the circuit court against Robert D. Fizette, Helen Fizette-Hilsinger and Lee Ticehurst is not a final judgment from which an appeal would lie. Ray v. Missouri Christian College, 93 S.W.2d 1030; Hill-Behan Lumber Co. v. Hammer Dry Plate Co., 162 S.W.2d 348; Stephens v. D.M. Oberman Mfg. Co., 70 S.W.2d 899; Boden v. Johnson, 23 S.W.2d 186; Ford v. Ford, 24 S.W.2d 990; Rock Island Implement Co. v. Marr, 67 S.W. 586. (6) Probate court loses jurisdiction when an appeal is allowed. Kansas City v. Jones Store Co., 28 S.W.2d 1008; Niedringhaus v. Niedringhaus, 54 S.W.2d 79. (7) The jurisdiction of the appellate court depends upon the jurisdiction and power of the lower court to render the judgment appealed from. See cases cited above. (8) Probate courts possess only the powers granted to them by the constitution and statutes together with such implied powers as are necessary to effectuate those expressly granted. State ex rel. Baker v. Bird, 162 S.W. 119, 253 Mo. 569; 15 C.J., p. 1011, sec. 426. (9) Rawlins Phillips, the judgment creditor in the judgment rendered May 1, 1943, against Robert D. Fizette, Helen Fizette-Hilsinger and Lee Ticehurst (even if said judgment was valid), extinguished said judgment by making a full settlement thereof with Lee Ticehurst and releasing him from all liability thereon. Phelps v. Scott, 30 S.W.2d 71. (10) Mutual Commerce Casualty Company as surety on the appeal bond to the Supreme Court, would be entitled to recourse against Lee Ticehurst, a judgment debtor in the appeal from said judgment, for any amount it was required to pay upon said bond, if that judgment is held valid, hence his release released appellant. Phelps v. Scott, 30 S.W.2d 71. (11) Even if Lee Ticehurst is held to be only a co-surety with Mutual Commerce Casualty Company, this appellant would be entitled to contribution from him and entitled to credit for the amount paid by him to Rawlins Phillips, to-wit $ 532.90 if said judgment is held valid. Phelps v. Scott, 30 S.W.2d 71; Singleton v. Shepherd, 183 S.W. 1077; State ex rel. v. Matson, 44 Mo. 305; Secs. 3326, 3327, R.S. 1939. (12) Attorney's fees are not recoverable in this case. 10 Appleman, Insurance Law and Procedure, p. 294, sec. 6021.

John C. Meredith and Meredith & Harwood for respondent.

(1) The court in rendering a judgment for costs, or damages and costs, on an appeal bond against the unsuccessful parties to the litigation has a wide discretion and may render judgment against the parties to the litigation on equitable principles. 20 C.J.S. 505; Secs. 287, 1406, R.S. 1939; Crooks v. Crooks, 197 S.W.2d 678; Marsala v. Gentry, 232 S.W. 1046. (2) The orders of October 1, 1942, and prior thereto had found against all claimants and blood relatives of the said Harry A. Phillips. It was still the duty of the court and it had jurisdiction to reconsider its findings on newly discovered evidence and the evidence theretofore adduced. Ross v. Pitcairn, 179 S.W.2d 35; In re Mills Estate, 183 S.W.2d 369; State ex rel. v. Fidelity Deposit Co., 298 S.W. 83; State ex rel. v. Hughes, 123 S.W.2d 105; 24 C.J. 523, sec. 1389. (3) Lee Ticehurst, the surety on the prior appeal bond from the probate court, was not a co-surety with the Mutual Commerce Casualty Company, surety on the later appeal bond from the circuit court. Between successive sureties on different bonds given in a judicial proceeding, those last in time are primarily liable and those first in time secondarily liable. The sureties among themselves are liable in the inverse order of their undertakings and the surety on the prior bond may seek reimbursement from the surety on the later bond; the surety on the later bond is not entitled to contribution from the surety whose liability arose on a prior bond. The surety for the original debt against whom and his principals a judgment has been obtained can recover from a surety on a bond given by the principals to stay the judgment. 50 C.J., page 315, secs. 533-B, 534 (2); Gary v. Swinney, 17 S.W.2d 505; Hoppe v. Boerger, 116 S.W.2d 195; Schuchman v. Roberts, 133 S.W.2d 1030. (4) The judgment and decree in the circuit court rendered June 29, 1944, finding Rawlins Phillips the sole and only heir and distributee of the estate of Harry A. Phillips, deceased, and the judgment against Robert D. Fizette and Helen Fizette Hilsinger as principals, and Lee Ticehurst, as surety, for the sum of $ 1065.80 is res adjudicata in this proceeding on motion for judgment against the Mutual Commerce Casualty Company, the surety on the appeal bond. Kopitsky v. Schwenker, 85 S.W.2d 180; Home Ins. Co. v. Savage, 103 S.W.2d 900; State ex rel. v. Blakemore, 275 Mo. 695; Union State Bank v. American Surety Co., 23 S.W.2d 1038; Jones v. Mastin, 60 Mo.App. 578.

OPINION

Leedy, C.J.

This is an appeal from a judgment enforcing the liability of Mutual Commerce Casualty Company, in the sum of $ 1065.80, as surety upon a supersedeas bond given in this case on a former appeal by Robert D. Fizette, Carter E. Fizette and Helen Fizette Hilsinger [for brevity sometimes hereinafter referred to as the Fizettes] from the Circuit Court to the Supreme Court. That appeal having been voluntarily dismissed, Rawlins Phillips, the obligee in the bond, filed his motion in the circuit court for judgment thereon under Sec. 134 of the Civil Code, 847.134 Mo. R.S.A. (All references to statutes are to R.S. Mo. '39 and Mo. R.S.A., unless otherwise noted.) Judgment went for him in the amount stated, and Mutual Commerce Casualty Company appealed to the Kansas City Court of Appeals, where the judgment was affirmed. On application to this court, the case was transferred under Art. V, Sec. 10, of the Constitution of 1945, and rule 2.06 of this court. Pending submission here, the Superintendent of the Division of Insurance, Department of Business and Administration of the State of Missouri, was appointed receiver of the appellant, Mutual Commerce Casualty Company, and as such he has been substituted as party appellant.

The proceedings out of which the present controversy arises originated in the Probate Court of Jackson County in the Estate of Harry A. Phillips, deceased, as a dispute concerning heirship, but, as observed in the opinion of the Court of Appeals, "The transcript brought here by the appellant is not very satisfactory from the standpoint of disclosing the facts giving rise to this appeal. The scantiness of facts results from the failure of the appellant to introduce in evidence in the circuit court the records of the probate court bearing on this controversy."

It does affirmatively appear that on May 1, 1943, the probate court found Rawlins Phillips to be the sole and only heir-at-law of the deceased, Harry A. Phillips, and that he was entitled to the possession of the deceased's real estate (then in the hands of the public administrator), and ordered partial distribution of the estate to him. The court further found that "the other blood relatives especially Robert D. Fizette, Carter E. Fizette and Helen Fizette Hilsinger have no right, title or interest in his estate," and set aside its previous "order of October 1, 1942, wherein Rawlins Phillips was found not to be the sole and only heir-at-law of Harry A. Phillips, deceased." This May 1, 1943, order or judgment of the probate court expressed or described the proceeding as being upon Rawlins' "motion...