Boone's Adm'r v. Shackleford's Adm'r

• Decision Date: 31 October 1877
• Citation: 66 Mo. 493
• Parties: BOONE'S ADMINISTRATOR v. SHACKLEFORD'S ADMINISTRATOR.
• Court: Missouri Supreme Court

66 Mo. 493

BOONE'S ADMINISTRATOR

v.SHACKLEFORD'S ADMINISTRATOR.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

F. S. Heffernan for plaintiff.

F. H. Warren and Bray & Cravens for defendant.

HENRY, J.

On the 30th day of November, 1863, Elisha Headlee, then administrator of the estate of Nathan Boone, commenced a suit in the circuit court of Greene county, against Bedford Henslee and Wm. Norfleet, administrators of the estate of Gabriel Shackleford, deceased, James Boone, Benjamin H. Boone, William C. Price and John Lair, on the bond of said Shackleford and James Boone, as executors of the estate of said Nathan Boone, the other defendants being their securities on said bond. On the first of April, 1863, Shackleford died, and on the 27th of May, 1863, the Greene county probate and common pleas court revoked the letters of said Boone; and Headlee, as public administrator, was ordered to take charge of said Nathan Boone's estate. The petition alleged that Boone and Shackleford, as executors, had in their hands, belonging to said Nathan Boone's estate, eight thousand eight hundred and seventy dollars, on which they were chargeable with interest from the 18th day of August, 1860, for which plaintiff asked judgment. Norfleet and Henslee were served with process, and judgment was rendered against them as administrators of the estate of said Shackleford. From that judgment they appealed to this court, and at its January term, 1874, the judgment was affirmed. The case is reported in 54 Mo. 518. On the 4th of May, 1874, the plaintiff presented said judgment to the probate court of Greene county for allowance and classification against the estate of said Shackleford, and the administrators filed as a set-off, an account against said estate for $5,478.79 and interest thereon, from July 25th, 1865, amounting to $2,876.35. This account was for notes belonging to the estate of N. Boone, with which Shackleford and Boone, executors of said estate, were charged, and which Henslee and Norfleet, administrators of Shackleford, turned over to Headlee, administrator de bonis non, of N. Boone's estate. The probate court refused to allow the set-off, and allowed the amount of the judgment against Shackleford's estate, and classed it in the fifth class of demands. Pending the proceedings in the probate court, Henslee and Norfleet were removed from the administration, and Julian, public administrator of Greene, took charge of the estate, and Headlee died after the original judgment was affirmed by this court, and J. D. Van Bibber succeeded him as administrator of Boone's estate. From this judgment of the probate court, allowing and classifying said demand, the defendants appealed to the circuit court. In the circuit court there was a trial de novo, and the defendants were allowed, as a set-off against the judgment, $1,613 of the notes embraced in the receipt of Headlee, as administrator to Henslee and Norfleet, and rendered judgment against the estate of Shackleford for $8,598.85, and remanded it to the probate court for classification. Both parties appealed from the judgment of the circuit court. The notes for which the set-off was claimed, were delivered to Boone's administrator on the 25th of July, 1865, nearly two years after commencement of the suit, and the original judgment of the circuit court was rendered December 12th, 1870. The defendants now insist that the original judgment was void, because the circuit court had no jurisdiction of the cause; that at all events the court should have allowed, as a credit, the amount of the assets embraced in the receipt from Headlee, administrator of Boone's estate, to defendants, administrators of Shackleford's estate. The plaintiff contends that the circuit court had jurisdiction of the cause, and that the judgment rendered therein December 12th, 1870, was a valid judgment; that the circuit court erred in trying the cause de novo on the appeal from the probate court, and in allowing the credit of $1,613 against the judgment.

In the case of McCraw v. Hubble, 61 Mo. 107, this court held that on an appeal from the probate and common pleas court of Greene county to the circuit court of said county, there could not be a trial de novo, but that the cause should be heard and determined solely as an appellate court, and upon errors assigned. As the proceedings in the probate court were not preserved by bill of...