State ex rel. Gray v. Carroll

• Decision Date: 28 April 1903
• Citation: 101 Mo. App. 110,74 S.W. 468
• Court: Missouri Court of Appeals
• Parties: STATE ex rel. GRAY v. CARROLL et al.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 468

101 Mo. App. 110

STATE ex rel. GRAY v. CARROLL et al.^*

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

EXECUTORS—SETTLEMENT—DECREE—COLLATERAL ATTACK—APPEAL—RECORD—REVIEW.

1. Where, on appeal of a cause tried by the court, the record alone is brought up, the appellate court is confined to the consideration of questions appearing on the face of the record proper; and errors or defects of a fatal character thus manifest may be reviewed, even though there has been no motion for a new trial.

2. The final settlement of an executor cannot be attacked for fraud in a collateral proceeding, but can only be attacked by a direct proceeding in equity on the ground of fraud perpetrated on the court in the very act of procuring the judgment.

3. Final settlements of executors are final judgments, which cannot be attacked for fraud in a collateral proceeding; and where, in an action on an executor's bond, defendant pleaded such a settlement, and plaintiff, in his reply, admitted the same, but alleged fraud, it was error to render judgment for plaintiff.

Appeal from Circuit Court, Pike County; Davis H. Eby, Judge.

Action by the state, on the relation of W. O. Gray, as trustee, against Henry S. Carroll and others. From a judgment for plaintiff, defendants appeal. Reversed.

Ball & Sparrow and Dempsey & McGinnis, for appellants. Gray, Tapley & Fitzgerrell, for respondent.

REYBURN, J.

This is an action upon the statutory bond of executors, against them and their sureties; and the breach assigned is that the probate court of Pike county ordered the executors to pay to the trustee of the estate whereof plaintiff was present trustee a distributive share, a balance of which remained unpaid after demand therefor. The joint answer of defendants admitted the fiduciary capacity of plaintiff, the executorship, and bond, but denied the breach, and pleaded affirmatively payment to plaintiff's trust of all sums due from the estate administered on. The answer further averred that the executors, after due and legal notice, had made full, complete, and final settlement of the estate, which had been fully and finally approved. In addition to a general denial, the reply admitted that the executors had made a pretended final settlement of the estate, but it was averred that such pretended final settlement was false and fraudulent, and procured by false and fraudulent representations made to the court, whereby the court was deceived; and it was further and specifically alleged that in such pretended final settlement, and in all their annual settlements the executors represented to the court that they had paid to plaintiff's trust estate, as shown in their settlement, May 1, 1883, as directed by the probate court, a sum specified, which representation was false and fraudulent, and the court thereby deceived and misled; and a prayer was added to set aside all such settlements. The cause was tried by the court, which rendered judgment in favor of relator, and defendants have brought for review by this court the record alone. We are therefore confined to the consideration of questions appearing on the face of the record proper, and errors or defects of a fatal character thus manifest may be reviewed even where a motion for new trial may be lacking. Land Co. v. Bretz, 125 Mo. 418, 28 S. W. 656; State ex rel. v. Scott, 104 Mo. 26, 15 S. W. 987, 17 S. W. 11.

It was pleaded by defendants that final settlement had been made in legal manner, and after due publication, which was admitted by the reply, but therein asked to be...