Brooks v. Duckworth

• Decision Date: 31 January 1875
• Parties: JOHN BROOKS, Defendant in Error, v. G. S. DUCKWORTH, Adm'r, etc., Plaintiff in Error.
• Court: Missouri Supreme Court

59 Mo. 48

JOHN BROOKS, Defendant in Error,

v.G. S. DUCKWORTH, Adm'r, etc., Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1875.

Error to Dent Circuit Court.

E. T. Wingo, for Plaintiff in Error.

I. A judgment or order of allowance of a demand against an estate, where there has been no notice to the administrator, and where notice has not been waived in open court, may be set aside at any time. (Bryan vs. Mundy, 14 Mo., 458.)

II. Both the Probate and the Circuit Courts erred in permitting parol testimony to prove the action of the County Court when said demand was allowed; the action of the court can be proved only by its records. (Milan vs. Pemberton, 12 Mo., 598.)

III. An entry nunc pro tunc can be made only by the court that tried the cause, or acted in relation to the matter in dispute. (Saxton v. Smith, 50 Mo., 490.)

Ewing & Smith, with A. J. Seay, for Defendant in Error.

I. A court may always at subsequent terms correct misprisions of its clerk, so as to conform the record to the truth, and enter judgments nunc pro tunc. (Turner, Ex'r, vs. Christy, 50 Mo., 145; Brewster vs. Dinwiddie, 25 Mo., 352; Stacker vs. Cooper, Ct. Ct., Id., 402; Gibson vs. Chouteau's Heirs, 45 Mo., 171; Scruggs vs. Scruggs, 46 Mo., 271.)

II. The Probate Court was virtually the same as the County Court; the jurisdiction was the same, and a change in the name of the tribunal would make no difference.

SHERWOOD, Judge, delivered the opinion of the court.

In 1866 the plaintiff, Brooks, had a claim probated in the County Court of Dent County, against the estate of S. Dougherty, deceased. Six years thereafter the administrator de bonis non filed his motion in the Probate Court of that county, (probate jurisdiction having been transferred from the County Court to that court) to set aside the judgment of allowance, on the grounds that it had been rendered without any notice to the administrator and without his waiving notice, and that the record of the allowance of the claim did not recite that any notice was given. Pending the consideration of this motion, the claimant also made one praying the entry of an amended order of allowance with an entry nunc pro tunc showing that notice was given. The former motion was overruled and the latter prevailed; and an entry as prayed for was made.

This entry which embraces and precedes the entry nunc pro tunc, among others, contains the recital, that the matters pertaining to the motion were “submitted to the court on testimony and argument.” What that testimony was we are left to conjecture. It may have consisted of memoranda gleaned from the minutes or docket of the court.

The administrator appealed to the Circuit Court, where the plaintiff introduced the nunc pro tunc entry already referred to, and parol evidence also, showing that notice was in fact given; to the introduction of all which matters the defendant objected, on the ground that the acts of the County Court could not be proved by parol evidence, but could be established alone by its records.

The defendant introduced no testimony showing that notice was not given, but contented himself with the introduction of the original order of allowance, which did not in any manner recite that notice had been either given or waived. The Circuit Court affirmed the judgment of the Probate Court, and entered judgment against him, as if he were acting in an individual instead of a fiduciary capacity.

There are three ways by which notice is served on an administrator or such service is waived: First, by serving him with a copy of the notice ““containing,” etc. Second, by his appearing in court and waiving the service of such notice. Third, by his waiving service by writing. (Wagn. Stat., 104, §§ 15, 17.)

It is obvious that it would be more in accordance with technical precision, that in cases of this sort the record should recite notice given or notice waived; but it is equally obvious, that those to whom are committed the exercise of functions pertaining to probate jurisdiction, are, for the most part unconversant with those rules and forms, a better observance of which would oftentimes prevent much subsequent embarrassment.

The...