Bronson v. Bronson
| Decision Date | 19 January 1891 |
| Parties | Branson et al., Administrators, v. Branson et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court. -- Hon. C. C. Bland, Judge.
Reversed.
T. K Skinker for appellants.
(1) The orders of the circuit court of February 16, 1887, and August 6, 1887, were both erroneous because they undertook the one to direct and the other to approve the sale of the remaining assets in the hands of the administrators. R. S. 1879, secs 241, 292, 297, 299, 300; Baker v. Runkle, 41 Mo 391; Seymour v. Seymour, 67 Mo. 303; North v. Priest, 81 Mo. 563; Peters v. Clendenin, 12 Mo.App. 521. (2) The circuit court erred in undertaking to make a final settlement of this estate, because none had been first made by the probate court. R. S. 1879, secs. 238, 239, 292, 300; Baker v. Runkle, 41 Mo. 391; Seymour v. Seymour, 67 Mo. 303; North v. Priest, 81 Mo. 563; Wood v. Court, 28 Mo. 119; Peters v. Clendenin, 12 Mo.App. 521. (3) The circuit court erred in acting upon the paper filed for a final accounting, because it was neither signed nor verified by the administrators. R. S., sec. 222. (4) The motion filed by the distributees August 3, 1887, to set aside the order of February 16, was in time. R. S., secs. 239, 241. The order of the sixteenth of February was not a final judgment or decision. Freeman on Judgments, secs. 12, 29; State v. Satterfield. 54 Mo. 391. Wherever there is a judgment or decision not final in its nature, objection may be taken to it notwithstanding the lapse of term. Terminal Co. v. Railroad, 94 Mo. 535; McDonough v. Nicholson, 46 Mo. 35; Dutcher v. Hill, 29 Mo. 271; Matter of Marquis, 85 Mo. 617; Fourniquet v. Perkins, 16 How. 82; Davis v. Roberts, 1 Smed. & M. Ch. 543. To be exempt from the power of the modification or rescission at a subsequent term, a judgment or decision must be final. State v. Court, 51 Mo. 522; Peake v. Redd, 14 Mo. 79; Ashby v. Glasgow, 7 Mo. 320; Danforth v. Lowe, 53 Mo. 217; Bloss v. Tacke, 59 Mo. 174; Wooldridge v. Quinn, 70 Mo. 370; Bell v. Kelly, 17 N. J. L. 270. (5) The objection taken August 6, 1887, to the report of the sale was in time. (6) The circuit court erred in excluding the evidence offered by the distributees to show that the administrators had agreed to act without charge. Such an agreement is lawful and will be enforced. Bate v. Bate, 11 Bush, 639; McCow v. Blewitt, 2 McCord Ch. 103; Estate of Davis, 65 Cal. 308; Matter of Hopkins, 32 Hun, 618; 2 Woerner on Admin., p. 1172; Bassett v. Miller, 8 Md. 548. (7) The order of February 16, 1887, was not a consent order.
L. F. Parker for respondents.
(1) The case was properly appealed to the circuit court. R. S. 1879, sec. 292. (2) That appeal took the whole proceeding into the circuit court. R. S., sec. 292. In this case the order of distribution was final, and must have been appealed from then, or not at all. Seymour v. Seymour, 67 Mo. 303; Bank v. Reilly, 8 Mo.App. 544. (3) Neither at the trial in the probate court nor until after a hearing has been had upon the merits in the appellate court is any question made that the statement filed as a final accounting was not signed and sworn to. This is not a jurisdictional matter, and was waived by not raising the question at or before the hearing upon the merits. Burdsal v. Davies, 58 Mo. 138; Peake v. Bell, 65 Mo. 224; Lang v. Talley, 91 Mo. 305. (4) The offer to introduce evidence at the August term, 1887, and after final judgment came too late, no attempt having been made to show any diligence, and no reason given why such evidence was not offered at the hearing the preceding February. (5) It was discretionary with the trial court to reopen the question arising upon the objections to respondents' final accounting after one hearing had been had and finding made -- and that discretion having been soundly exercised -- this court will not interfere with it. (6) The order of February 16, 1887, was either a consent order or an order and finding upon a hearing had. In either event, then was the time and that was the place to introduce any testimony that the objecting distributees desired to offer. (7) If the appeal was premature, such irregularity has been waived, by the objecting distributees by appearing and consenting to a judgment in the circuit court, or by appearing and proceeding to trial without objection. Lang v. Talley, 91 Mo. 305. (8) All objections to the finding of the court on respondents' final accounting as well as the right to appeal from or question the judgment rendered thereon have been waived by appellants by collecting and receiving the amount of said judgment. Cassell v. Fagin, 11 Mo. 207; Chase v. Williams, 74 Mo. 429; Robards v. Lamb, 76 Mo. 192.
The plaintiffs, Branson and Owens, as administrators of the estate of David Branson, filed in the probate court of Phelps county their final settlement, to which four of the heirs filed exceptions. The issues thus made were heard by the probate court on the ninth of September, 1886. Some of the exceptions were sustained and others overruled. The judgment of the probate court is to the following effect: First. That the administrators stand charged with the sum of $ 4,024.64; second, that they pay designated allowed demands; third, that they pay to each distributee $ 508.57; fourth, that they sell the uncollected notes and accounts and some other personal property and report at the next November term; and the order concludes by continuing the settlement to the next term for final approval. The administrators appealed from the foregoing order at the term at which it was made.
The controversy was heard anew in the circuit court at its February term, 1887. It seems the probate court overlooked a prior order directing the administrators to pay to each distributee the sum of $ 240. The circuit court corrected this error, but the amount adjudged to be in the hands of the administrators is the same as that found to be due by the probate court. No further steps were taken in the case at that term of the circuit court; but at the following August term the administrators made a report of their sale of notes and accounts, exhibited receipts from all of the distributees for amounts ordered to be paid under former orders of the probate and circuit courts, and the circuit court then made an additional order of distribution of the proceeds arising from the sale of notes and accounts, and discharged the administrators. The defendants at that term filed various motions and took a bill of exceptions, and appealed to this court.
1. The first contention on the part of the defendants is that the appeal from the probate court was taken before that court had rendered any final order or judgment on the settlement, and for that reason the circuit court acquired no jurisdiction of the case.
That appeals may be taken from the probate court on all final settlements and from all orders making distribution, cannot be doubted. But the contention is that the order of distribution and order settling the accounts are distinct orders, and the order settling the account was continued until the next term of the probate court, so that there was no final adjudication. The order of the probate court continuing the settlement to the next term for final approval was made pursuant to section 241, Revised Statutes, 1879, which provides that, at the time of making the final settlement, "The court may, in its discretion, order the executor or administrator to sell at public auction all notes, accounts and choses in action, remaining in his hands, upon such terms as it may direct, and report the proceeds of such sale to the court at its next regular term, and said settlement shall be continued to such term."
Does this statute mean that the entire settlement shall remain open until the incoming of the report of sale of uncollected notes, or does it mean that the continuance is made for the sole purpose of disposing of the remaining matters necessary to be done before the administrators can be discharged? We think it means the latter, and for these reasons: The court before making an order of sale, must determine finally the question as to what notes and accounts shall be credited to the administrator; for it is the notes and accounts for which he receives credit that are to be sold. Again, the parties prepare for trial of the issues presented by the exceptions,...
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