Ault v. Bradley

• Decision Date: 12 December 1905
• Parties: AULT, Appellant, v. BRADLEY, Administrator, et al
• Court: Missouri Supreme Court

90 S.W. 775

191 Mo. 709

AULT, Appellant, v. BRADLEY, Administrator, et al

Supreme Court of Missouri, Division Two

December 12, 1905

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

McGill & Lindsey, Lamson & Christenden and W. D. Tatlow for appellant.

(1) After a final judgment in the case the parties are out of court, and the necessity for their appearance is presumed to be at an end, and if the opposite party would take any further steps he must give his adversary notice and an opportunity to be present and to be heard. Caldwell v Coleridge, 9 Mo. 358; Parker v. Johnson, 22 Mo.App. 516; Railroad v. County, 55 Mo. 162. The same view is taken by other courts. Wright v LaClare, 3 Iowa 221; Delaplane v. Hitchcock, 6 Hill 14; Chester v. Miller, 13 Cal. 558; Perkins v. Hayward, 132 Ind. 95; Murphy v. Farr, 11 N.J.L. 186; Freeman on Judgments, sec. 142. (2) It has been expressly held by this court that where the final settlement is approved by reason of the fraudulent and collusive arrangement between the probate judge and the administrator it will be set aside at the instance of the heirs, even though such fraud was discovered in time to appeal therefrom and the heirs did appeal therefrom and afterwards voluntarily dismissed their appeal. Baldwin v. Davidson, 139 Mo. 118; Baldwin v. Dalton, 168 Mo. 20. (3) Even in an action of law, where a claim has been allowed against an estate, not as an unconditional allowance but as an allowance of a judgment of offset, which was afterwards fraudulently changed so as to show an unconditional allowance for the amount of the claim, such fact may be shown by parol in an action involving such allowance. Sweet v. Maupin, 65 Mo. 65.

George Hubbert with White, Clay & Sheppard for respondent.

(1) The appellant can no more rid himself of the consequences of his judgment of the probate court, that his claim was the debt of the partnership estate of Walters & Huddleston, than he could evade the estoppel by judgment of any other court of record. The existence of the partnership cannot be questioned. That is conceded on all hands. That the demand, allowed and classified against the partnership estate, was identically the same claim that was allowed against the Walters estate, is beyond dispute. The judgment of the probate court thereon is as absolute estoppel as any judgment of any court of record can be. Smith v. Hauger, 150 Mo. 444; Covington v. Chamblin, 156 Mo. 587. The fact that the partnership debt was several as well as joint, could not affect the question as to its being primarily the debt of the firm; it must be treated and dealt with as such, for all purposes of this case. Burns v. Mason, 11 Mo. 478; Level v. Farris, 24 Mo.App. 441. Even if the judgment against the partnership estate were wrong, it cannot be set aside, nor its force incidentally ignored, in this collateral case. Bedford v. Sykes, 168 Mo. 8; Johnson v. Stebbins, 167 Mo. 325. And the principle is directly applicable to partnership estates in course of administration in probate courts. In re Judy's Est., 166 Mo. 13. (2) One of the inevitable consequences of that judgment was, the exclusion of the creditor of the partnership estate of Walters & Huddleston, whose demand had been reduced to judgment against such estate, from participating in the distribution of the individual assets of the single deceased partner, Walters, until all the exclusively individual demands allowed have been satisfied. Hundley v. Farris, 103 Mo. 78; Hargadine v. Sappington, 105 Mo.App. 655. The true relations between parties to promissory notes may be shown, even by parol testimony. 2 Jones Evi. (1 Ed.), sec 507; Abb. Tr. Ev. (2 Ed.), sec. 27; Browne, Par. Ev., sec. 83; George on Partnership, sec. 36; Bish. Cont., sec. 1149; Tilford v. Ramsey, 37 Mo. 565; Bank v. Bayless, 41 Mo. 287; Kahn v. Overtstolz, 82 Mo.App. 235; Bracken v. March, 4 Mo. 74; Braches v. Anderson, 14 Mo. 441. (3) The extension and perfection, of the record entry, of the judgment of the probate court, against the Walters estate, was well within the law and the powers of that court; it was neither fraudulent nor injurious to appellant. In the ordinary course of procedure, the plaintiff must have known that the full record entry of the judgment would be read the following day after the judgment was rendered; and it follows that all parties are chargeable with full notice thereof, in the absence of any fraud or device to keep them from attendance and knowledge. R.S. 1899, secs. 1586, 1594; Maupin v. Franklin Co., 67 Mo. 329. But the probate court had full power over its judgment during the entire term; and it would have been competent for it to modify its terms, even after the full entry had been spread upon the record. Aull v. St. Louis Co., 149 Mo. 1; Rotman v. Schumacker, 94 Mo. 139. The written draft for record entry cannot be held to have been the judgment of the court, until it was spread upon the record or minutes; and that was not done until the additions complained of were made; so there was no judgment of the court except as entered in writing on the official court book; if the draft had been written by the judge himself as an opinion that the form was proper, it was not a judgment until entered. Hewett v. Steele, 118 Mo. 473; Taylor v. Scherpe, 47 Mo.App. 257. Yet we need not rely upon the change for the effect we claim for the judgment of the probate court, even according to the entry as originally drawn, for it implied all that the change could accomplish; for judgments, like other contracts, bear upon their face, by implication, the law of their being and may not be separated therefrom. State v. Gilmore, 141 Mo. 512; Medlin v. Platte Co., 8 Mo. 235; Railroad v. Holschlag, 144 Mo. 257; Mobley v. Nave, 67 Mo. 549; Milan v. Pemberton, 12 Mo. 598; Reed v. Nicholson, 158 Mo. 631. A judgment of court being a contract of record, must include, as well as be construed by, the law thereof; every contract includes, as one of its essential elements, the law controlling at the date of its making; by which its terms are enlarged, qualified or limited, through construction. Bishop, Cont., secs. 437, 439; McElory v. Ford, 81 Mo.App. 500; 4 Blackstone, Com., * 465; St. Louis T. F. Co. v. Jackson, 128 Mo. 1.

OPINION

GANTT, J.

This is an appeal from the judgment of the circuit court of Greene county on a motion for judgment upon the pleadings in the above-entitled cause. The action was commenced on the 29th of June, 1901, in the circuit court of McDonald county, Missouri, and the venue changed to Greene county. As the judgment was rendered upon the pleadings, it becomes essential that they should be reproduced in full. The petition, omitting caption, is as follows:

"Now comes the plaintiff in the above-entitled cause, and for his cause of action states that on the 23rd day of December, A. D. 1899, W. T. Walters, now deceased, together with A. C Walters and G. H. Huddleston, executed their three several promissory notes to the order of the Southwest City Bank, copies of which said notes are fully set out hereinafter; that the said Southwest City Bank is a private bank doing business under the laws of the State of Missouri; that the plaintiff, A. F. Ault, is the sole proprietor thereof; that on the -- -- day of January, 1900, the said W. T. Walters departed this life intestate; that the defendant, Frank Bradley, is the duly appointed, qualified and acting administrator of the estate of said W. T. Walters, deceased, and the plaintiff, A. F. Ault, on the 18th day of February, A. D. 1901, during the regular February term, A. D. 1901, of the probate court of McDonald county, Missouri, filed and duly presented to said court his claim against the above-mentioned estate of W. T. Walters, deceased, which claim was founded upon the three certain promissory notes above mentioned, and which notes amounted in the aggregate, including principal and interest, to the sum of $ 5,142.39; that prior to the time said claim was filed and presented, to-wit, on the 19th day of December, A. D. 1900, said Frank Bradley, as administrator of said estate, waived service of notice in writing indorsed upon the back of said claim; that on the said 18th day of February, A. D. 1901, at the hearing in said probate court, upon said demand, the plaintiff herein appeared in person and by attorney, and the said Frank Bradley, as administrator aforesaid, also appeared in person and by attorney, and the said probate court rendered judgment in favor of the plaintiff herein against Frank Bradley, as the administrator of the estate of W. T. Walters, deceased, on said claim, for the aforesaid sum of five thousand one hundred and forty-two dollars and thirty-nine cents, and the judge of said court thereupon entered in his minute book the following entry, to-wit: 'Est. of W. T. Walters, deceased, demand allowed, $ 5,142.39,' and thereupon the judge of said probate court entered upon the back of said claim the following certificate of allowance, to-wit: 'I hereby certify that the sum of five thousand one hundred and forty-two dollars and thirty-nine cents, was allowed on the attached demand of the fifth class of demands and costs, on the eighteenth day of February, A. D. 1901. J. P. Caldwell, Judge of Probate.' And the said judge also entered in the abstract of demands the following entry: 'Allowed, February 18th, 1901, A. F. Ault, notes, class 5, $ 5,142.39.'

"That said entry is on page 83 of the abstract of demands, in said probate court, and in the list of demands allowed against the said estate of W. T. Walters, deceased; that on the same day on which said claim was allowed, and immediately after the allowance of the same, the attorney for plaintiff, A. F Ault, at the request of the probate judge,...