Amos v. Wetzel
| Decision Date | 22 November 1939 |
| Docket Number | No. 36076.,36076. |
| Citation | 133 S.W.2d 361 |
| Parties | AMOS et al. v. WETZEL. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Moniteau County; Nike G. Sevier, Judge.
Proceedings in the matter of the estate of J. W. Wetzel, deceased, wherein Henry Amos and others filed a claim, opposed by Elizabeth Wetzel, executrix of the estate of J. W. Wetzel, deceased. The probate court sustained a motion to dismiss the claim and entered judgment accordingly, and on appeal to the circuit court, that court sustained a motion to dismiss the appeal and entered judgment against claimants for costs. From the judgment, claimants appeal.
Affirmed.
R. F. White, of Eldon, and W. C. Irwin, of Jefferson City, for appellants.
Embry & Embry, of California, for respondent.
BOHLING, Commissioner.
This action originated upon a claim against the estate of J. W. Wetzel, deceased, in the Probate Court of Moniteau County, Missouri. It is there alleged that the claimants are all the heirs at law (brothers, sisters and descendants of deceased brothers and sisters) of Laura C. Wetzel, who departed this life intestate in 1930, possessed of personal property of the value of $30,000; that there was no administration of the estate of said Laura C. Wetzel but that J. W. Wetzel, her husband, took charge of said property; that said J. W. Wetzel remarried; that he died testate in 1936 bequeathing all his estate to his second wife; and that the executrix of the estate of said J. W. Wetzel, deceased, had possession of the aforesaid personal property. Said claim concludes with a prayer that the executrix of the estate of J. W. Wetzel, deceased, pay over to said claimants the sum of $15,000, one-half of the estate of said Laura. The Probate Court sustained a motion to dismiss said claim and entered judgment accordingly. This was followed by an order granting an appeal to the Circuit Court of Moniteau County, Missouri, which order referred to the filing of an affidavit for appeal and bond therefor. The Circuit Court sustained a motion to dismiss the appeal and entered judgment against claimants for costs, stating, among other things, that the affidavit for appeal was insufficient to vest jurisdiction of the cause in said Circuit Court. Thereafter, an appeal was granted, with leave to file a bill of exceptions.
Respondent attacks appellants' abstract of the record. The abstract contains no bill of exceptions. Respondent says appellants' assignments of error — that the court erred (1) in sustaining the motion to dismiss the appeal and (2) in dismissing the appeal without allowing appellants to file an amended affidavit — are not for consideration here. Appellants' position is that said assignments are reviewable on the record proper and no bill of exceptions was necessary.
Article 12 of Chapter 1 (Secs. 284-295), R.S.1929, Mo.St.Ann. §§ 284-295, pp. 177-187, relates to appeals from the probate courts. Section 287 provides for the filing of an affidavit for such an appeal and Sec. 288 provides for the giving of an appeal bond. Section 290 provides that "* * * no appeal shall be dismissed in the appellate court for failure to file affidavit or bond, or because of a defective affidavit or bond, provided the appellant shall file the affidavit and a bond to the satisfaction of the court in which the appeal may be pending." Upon such appeal, it is the duty of the clerk of the probate court to transmit to the clerk of the circuit court a certified transcript of the record and proceedings, together with the original papers relating thereto (Sec. 291), and "upon the filing of such transcript and papers in the office of the clerk of the circuit court * * * the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the probate court" (Sec. 292).
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In re McArthur's Estate
...even if no affidavit has been filed or if the affidavit filed were defective. Estate of Wm. G. Williams, 62 Mo.App. 339; Amos v. Wetzel, (Mo.) 133 S.W. 2d 361. (3) The orders mentioned in the affidavit must be regarded as a unity. In re Mills's Estate, 349 Mo. 611, 162 S.W. 2d 807, 809-810;......
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In re Moore's Estate
...and the judgment of the circuit court should be affirmed. U.S. v. Gamble & Bates, 10 Mo. 457; Brown, Admr., v. Foote, 55 Mo. 178; Amos v. Wetzel, 133 S.W.2d 361; Laybourne Columbia Natl. Bank, 56 S.W.2d 790. (2) The motion to dismiss is not part of the record proper before this court for re......
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McArthur v. McArthur
...even if no affidavit has been filed or if the affidavit filed were defective. Estate of Wm. G. Williams, 62 Mo. App. 339; Amos v. Wetzel, (Mo.) 133 S.W. 2d 361. (3) The two orders mentioned in the affidavit must be regarded as a unity. In re Mills's Estate, 349 Mo. 611, 162 S.W. 2d 807, 809......
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In re Arnold's Estate
... ... Myers v. Myers v. Myers, 22 Mo.App. 94; Owens v ... Branson, 28 Mo.App. 584; Nies v. Stone, ... Mo.Sup., 108 S.W.2d 349; Amos v. Wetzel, ... Mo.Sup., 133 S.W.2d 361. On the other hand, when appeals ... in such cases involve amounts which do not 'exceed the ... sum of ... ...