Bealey v. Smith

• Decision Date: 12 November 1900
• Citation: 59 S.W. 984,158 Mo. 515
• Court: Missouri Supreme Court
• Parties: BEALEY v. SMITH.

59 S.W. 984

158 Mo. 515

BEALEY v. SMITH.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

APPEAL — PROCEEDING IN LOWER COURT — LAW OF CASE — SET-OFF AND COUNTERCLAIM — MUTUALITY OF DEMANDS — CLAIMS AGAINST ESTATE BY NONRESIDENT.

1. Where judgment is rendered for defendant on a claim pleaded as a set-off to plaintiff's demand, and plaintiff, on appeal, contends that the judgment was erroneous, because the trial court had allowed the set-off, and such contention is decided adversely to plaintiff, on a trial anew in the circuit court, the cause being remanded on another ground, and the evidence being practically the same, the decision of the appellate court is the law of the case.

2. Where a nonresident holds notes for collection as a decedent's agent, and after his death collects them, in an action by him against decedent's administrator to recover a balance due him from the estate on a note the court may adjust the differences, and render judgment against such claimant in favor of the decedent's estate.

Appeal from circuit court, Buchanan county; R. E. Culver, Judge.

Action by William Bealey against S. H. Smith, administrator of the estate of Norton Blake, deceased. From a judgment in favor of defendant, plaintiff appealed to the Kansas City court of appeals, which reversed the judgment, and the cause was certified to the supreme court, because one of the judges of such court of appeals was of opinion that its decision was in conflict with a decision of the supreme court. Judgment of circuit court reversed, and judgment directed for defendant.

This cause was certified to this court by the Kansas City court of appeals, because one of the judges of that court was of opinion that the decision of that court in this case is in conflict with the decision of this court in Kelly v. Thuey, 143 Mo., loc. cit. 437, 438, 45 S. W. 300. Under section 6 of the amendment of 1884 to article 6 of the constitution, it is the duty of this court, under such circumstances, to "rehear and determine said cause or proceeding as in case of jurisdiction obtained by ordinary appellate process." The case is this: Norton Blake formerly lived in Buchanan county. He died at the residence of his son in Louisiana, on the 26th of March, 1891, but was in legal contemplation a resident of Buchanan county, Mo., at that time. Bealey v. Blake, 153 Mo., loc. cit. 674, 55 S. W. 288. On the 28th of May, 1891, letters of administration upon his estate were granted by the probate court of Brown county, Kan., to Richard Huxtable. The plaintiff herein, who was Blake's son-in-law, resided in that county, and had in possession, as agent for the deceased, certain personal property. The plaintiff presented a claim against the estate to the Kansas administrator, based upon a note for $750, dated January 20, 1890, signed by Blake, which was allowed by the probate court in Kansas. On the 28th of July, 1892, the Kansas administrator paid the plaintiff thereon the sum of $511.92. The Kansas administration was closed July 28, 1893. In March, 1896, the plaintiff presented to the probate court of Buchanan county against the defendant, who as public administrator had charge of Blake's estate in Buchanan county, Mo., a claim for the balance of $475.44 due on the same note for $750, on which the Kansas administrator had paid the $511.92. The defendant answered, setting up that the plaintiff had not given full credit to Blake's estate for the indebtedness he owed it, and claimed that the plaintiff owed that estate $800 for rent he had collected about March 1, 1891, from Blake's tenant for rent of Blake's farm in Buchanan county; also that the plaintiff had also in like manner collected $800 a year rent for said farm for the years 1891, 1892, 1893, 1894, and 1895; and also that the plaintiff had collected, after Blake's death, four notes, aggregating, principal and interest, $1,684.85, which were made by Gilbert Blake to Norton Blake, none of which had the plaintiff accounted for or paid, and asked that these amounts be set off against the balance due plaintiff on said note. The case was tried in the probate court of Buchanan county, and afterwards, on appeal in the circuit court, the defendant obtained judgment against the plaintiff for $1,701. The plaintiff appealed to the Kansas City court of appeals, where the judgment of the circuit court was reversed, and the cause remanded. Bealey v. Blake's Adm'r, 70 Mo. App. 229. The ground upon which the case was reversed was that the defendant had no interest in or claim to the rents, which the plaintiff had collected, that accrued after Blake's death, but that those rents followed the title to the land, and belonged to Blake's heirs, and that an administrator, under the laws of Missouri, is entitled to only such rents after the death of the owner of the land as accrued after the administrator is ordered by the probate court to take charge of the land and collect the rents to pay the debts of the estate, and that such condition was not present in this case. Upon a trial anew in the circuit court, the court gave a peremptory instruction to the jury to find for the plaintiff, and the jury accordingly returned a verdict for the plaintiff for $539, and disregarded all of the defendant's counterclaims. The circuit court was, as is conceded by both sides, about to grant the defendant a new trial, because it appeared that the plaintiff had collected $300 rent during Blake's lifetime, which, under the decision of the Kansas City court of appeals, was a legitimate subject for a set-off by the administrator, and, to prevent the court from so doing, the plaintiff entered a remittitur for the $300 so collected, with interest, aggregating $420. This left a judgment for the plaintiff for $119, from which the defendant appealed to the Kansas City court of appeals. The defendant claimed in that court that under the prior decision of that court the right of the defendant to set off the $1,684.85, the proceeds of the four notes collected by the plaintiff, had been adjudicated, and therefore the trial court erred in withdrawing that right from the consideration of the jury, and in giving a peremptory instruction to find for the plaintiff. The plaintiff contended that the question of the defendant's right to setoff of this amount was not adjudicated on the former appeal, and was open to discussion on this appeal, because, while that question was in the case then and was referred to by the court of appeals, it was not discussed by the plaintiff then, and the reversal was then asked simply for the error of the trial court in allowing the defendant to recover for rents collected by the plaintiff after Blake's death; and, further, because it would be manifestly unjust to regard the prior decision to determine that question for the following reasons: "(1) Because there was no mutuality between the respondent's claim against the estate of Norton Blake and the administrator's claim against this defendant, on account of the alleged collection by the latter of the said four notes long after the death of Norton Blake. (2) Because the administration of the estate of Norton Blake was purely local to Missouri, and was confined to the chattels having a particular situs there, and therefore did not include a debt against this respondent, who was a citizen of Kansas, resident there, and which debt, therefore, had a situs in Kansas. (3) Because the entire item sounded in tort, and could not be maintained as a set-off." The Kansas City court of appeals held that the right of the defendant to set off the amount of the notes so collected by the plaintiff against the demand of the plaintiff for the balance due on the $750 note was before that court on the first appeal, and was passed upon and adjudicated then, and that such decision was the law of the case upon the trial court on the trial anew, and was not open to discussion when the case came the second time before the court of appeals, and, as the trial court had not followed the decision of the court of appeals, its judgment was erroneous, and hence the judgment was reversed, and the cause remanded. The cause was then transferred to this court for the reason first herein stated.

James W. Boyd, for appellant. Hall & Woodson, for respondent.

MARSHALL, J. (after stating the facts).

1. The right of the defendant to set off the four notes against the plaintiff's demand was distinctly denied by the plaintiff, and the claim was made by the plaintiff on the first appeal that the judgment was erroneous, because the trial court had allowed the set-off, as is shown by the brief of plaintiff's counsel in that case. Bealey v. Blake's Adm'r, 70 Mo. App. 229. This contention was met and decided adversely to the plaintiff by the court of appeals. Id., loc. cit. 233. This decision became the law of the case upon the trial anew in the circuit court...