Phillips v. Broughton

• Citation: 30 Mo.App. 148
• Parties: LILBURN L. PHILLIPS et al., Respondents, v. JEFFERSON M. BROUGHTON, Administrator, et al., Appellants.
• Decision Date: 27 March 1888
• Court: Court of Appeal of Missouri (US)

30 Mo.App. 148

LILBURN L. PHILLIPS et al., Respondents, v. JEFFERSON M. BROUGHTON, Administrator, et al., Appellants.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the New Madrid Circuit Court, HON. J. D. FOSTER, Judge.

Reversed.

WILSON CRAMER, for the appellants: The final settlement of an administrator has the force and effect of a judgment and can be set aside only for fraud. Yeoman v. Younger, 83 Mo. 429; Miller v. Major, 67 Mo. 248; Sheetz v Kirkey, 62 Mo. 418; Lewis v. Williams Adm'r, 54 Mo. 200; Byerly v. Doulin, 72 Mo 271. For the reasons assigned appellants contend that the court below erred in setting aside the final settlement, and that its judgment ought to be reversed.

RILEY & HAWKINS, for the respondents.

OPINION

THOMPSON J.

The amended petition in this case contained two counts. The first was in the nature of a bill in equity to set aside and surcharge an administrator's final settlement on the ground of fraud. The second was in the nature of an action at law for damages upon an administrator's bond. The defendants demurred to the petition, for the improper joinder of these two causes of action. The demurrer was sustained, and thereupon the plaintiff struck out the second count, namely, the action upon the administrator's bond, and subsequently amended the caption so that the petition stood simply as a bill in equity assailing the final settlement of the defendant's intestate, Davis, as public administrator in charge of the estate of Ross Phillips, deceased. Subsequently a hearing was had which resulted in a decree in favor of the plaintiffs.

It appears that the original petition was filed at the March term, 1880; and that this amended petition was filed on September 3, 1885, more than five years thereafter, and more than five years after the final settlement which is assailed. The original petition was in the nature of an action at law upon the administrator's bond merely, and the petition as amended added a count seeking the equitable relief of a setting aside of the administrator's final settlement. It is apparent that this count set up a new and distinct cause of action, and as the count on the administrator's bond was abandoned after the demurrer was sustained, there was a complete substitution of one cause of action for another by amendment.

The statute of limitations of five years was pleaded in respect of all the plaintiffs but one, who, at the time when the cause of action accrued, was under the disability of coverture. This defence was sustained by the evidence, but disregarded and overruled by the court. This was error. Whatever right remained to attack the administrator's final settlement had been barred in respect of all the...