Brown v. Marshall

• Citation: 145 S.W. 810
• Parties: BROWN et al. v. MARSHALL et al.
• Decision Date: 29 February 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 810

BROWN et al. v. MARSHALL et al.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

Motion for Rehearing Overruled March 29, 1912.

1. APPEARANCE (§ 24)—EFFECT—DEFECTS IN PROCESS.

Where a writ is made returnable to no term known to the law but to some day not the commencement of a term, appearance and pleading will not cure the defect in the writ.

2. COURTS (§ 61)—TERMS—POWER TO FIX.

Under Rev. St. 1855, p. 1601, § 9, authorizing the probate court of St. Louis county to alter the time of holding its stated terms, an order of the probate court of St. Louis county which fixes the regular terms of the court was valid though the Acts of 1877, p. 230, § 7, authorizing the various probate courts of the state by order to change the stated terms thereof, did not go into effect until the day after the order, since the prior statute remained in force until the act of 1877 became effective.

3. COURTS (§ 62)—TERMS—STATUTORY PROVISIONS.

Under the rule that a statute which repeals and re-enacts a pre-existing statute is but a continuation of the pre-existing statute, and the law dates from the passage of the pre-existing statute, the Acts of 1877, p. 230, § 7, authorizing probate courts by order to change the stated terms thereof to such times as the judges thereof may deem most convenient, and repealing inconsistent acts, is but a continuation of Rev. St. 1855, p. 1601, § 9, authorizing the probate court of St. Louis county to alter the stated terms of court.

4. COURTS (§ 42)—PROBATE COURTS—SEPARATION OF THE CITY AND COUNTY OF ST. LOUIS—EFFECT.

Under Const. 1875, art. 9, §§ 20, 23, 24; article 6, § 34; article 14, § 5; Schedule, § 3; Rev. St. 1855, p. 1599, § 1; Scheme for the Separation of the County and City of St. Louis, §§ 1, 3, 5, 10—requiring the Legislature to establish in every county a probate court, declaring that all probate courts shall continue with their jurisdiction until the Legislature shall by law conform them in their organization to the requirements of the Constitution, and defining the boundaries of the city of St. Louis, etc., the separation of the city of St. Louis from the county of St. Louis did not affect the organization, jurisdiction, or location of the probate court of the county of St. Louis established in St. Louis by Laws 1841, p. 54.

5. APPEAL AND ERROR (§ 440)—EFFECT— MODIFICATION OF JUDGMENT—POWER OF TRIAL COURT.

Where a final judgment from which an appeal lies has been rendered, a modification thereof by the court at a subsequent term without notice to the parties is void for want of jurisdiction over the parties.

6. EXECUTORS AND ADMINISTRATORS (§ 333)— SALE OF REAL ESTATE—PROBATE COURT— JURISDICTION.

Under Rev. St. 1879, § 168, providing that where the probate court does not approve a sale of real estate by an administrator it may order a new sale, a probate court acquiring jurisdiction of the heirs of a decedent in proceedings for the sale of decedent's real estate, and ordering a sale thereof pursuant to its finding that the estate is insolvent, may, on refusing to approve a sale by the administrator, order at a subsequent term a sale without notice to the heirs.

7. COURTS (§ 26)—EFFECT OF PROCESS—CONTINUANCE OF JURISDICTION.

Where a person is duly summoned into court for a particular purpose, he remains within the jurisdiction of the court until such purpose is finally accomplished or until he is otherwise discharged.

Appeal from St. Louis Circuit Court; C. C. Allen and Moses N. Sale, Judges.

Action by John C. Brown and another against John E. Marshall and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

This suit was instituted March 18, 1907, in the circuit court of Stoddard county by the plaintiffs against the defendants, under section 650, R. S. 1899, now section 2535, R. S. 1909, to ascertain and determine the interests of and to quiet the title of the parties to some 4,400 acres of land situated in said county, particularly described in the pleadings. Afterwards a change of venue was awarded to the circuit court of the city of St. Louis, where a trial was had, which resulted in a judgment in favor of the defendants, from which the plaintiffs duly appealed to this court.

It was agreed that Lewis V. Bogy was the common source of title. The plaintiffs claim title to the lands in controversy by regular quitclaim deeds from his heirs dated September 18, 1905, and the defendants claim title thereto through mesne conveyances from said Bogy under an administrator's deed made and executed by the administrator of his estate, in pursuance to orders of the probate court of St. Louis county, now the city of St. Louis, dated March 11, 1882. Since no question is raised as to the sufficiency of the pleadings, they will be put aside without further notice excepting we will here state that they are sufficient to embrace every question which will be discussed in this opinion.

As to the facts: Lewis V. Bogy, the common source of title, resided in the city of St. Louis, and died there intestate in the year of 1877, owning the land in controversy, as well as other lands in Stoddard county, leaving surviving him his widow, Pelagie Bogy, Joseph Bogy, his son, and Josephine Noonan, his daughter. The heirs of Lewis V. Bogy having waived their right to administer upon his estate, the probate court appointed Samuel N. Holliday administrator thereof. He duly qualified as such and entered upon the discharge of his duties as such.

The assets of the estate were duly inventoried and appraised by the administrator, as required by law, and claims to the amount of about $200,000 were duly allowed against it, which showed that the estate was hopelessly insolvent, the indebtedness exceeding the assets by about $185,000.

The St. Louis county probate court opened its June term, 1877, at the city of St. Louis, on the first Monday, being the 4th day of June of that year, and that there were present Honorable J. Gabriel Woerner, judge, William E. Wagner, clerk, and Isaac N. Mason, marshal. During the same term, and on the 28th day of July, 1877, the following order was made and entered of record by the court:

"It is ordered by the court that hereafter the regular terms thereof shall begin on the second Monday of September, and on the first Mondays of December, March, and June of each year, instead of the time now provided by law, and that notice of such change of time be published in each of the daily newspapers published in the city of St. Louis, and also by posting such notice in some conspicuous place in the clerk's office and courtroom. J. G. Woerner, Judge."

"The next record referred to is that of the probate court of the city of St. Louis, opening its September, 1877, term, whereby it is shown that the September, 1877, term was begun and held in the city of St. Louis on the second Monday, being the 10th day of September, 1877, and that there were present the same officers of the court before mentioned.

"The next record in order of time is the declination to administer and request for the appointment of Samuel N. Holliday as administrator of the estate of Lewis V. Bogy. This declination and request was dated October 23, 1877, and was signed by Pelagie Bogy, widow, Joseph Bogy, son, and Josephine Noonan, daughter, Thos. S. Noonan, her husband, designating themselves in the body as widow and heirs at law of Lewis V. Bogy, deceased.

"At the June term, 1878, of the probate court of the city of St. Louis, the administrator, Samuel N. Holliday, filed a petition asking for an order of sale of the lands of the estate of Lewis V. Bogy, deceased, or so much as may be necessary to pay the debts of the estate of the deceased, stating that the personalty was not sufficient for that purpose, and describing the lands of the estate, including the land involved in this controversy, and was accompanied by the lists and inventories previously mentioned."

The order of publication is as follows (formal parts omitted): "In the Probate Court for the City of St. Louis, June Term, 1878. Saturday, July 20, A. D. 1878. Order of Publication. Estate of Lewis V. Bogy. Now at this day comes Samuel N. Holliday, administrator of the estate of Lewis V. Bogy, deceased, and presents to the court his petition praying for an order for the sale of so much of the real estate of said deceased as will pay and satisfy the remaining debts due by said estate, and yet unpaid for want of sufficient assets, accompanied by the accounts, lists and inventories required by law in such case, on examination whereof, it is ordered that all persons interested in the estate of said deceased be notified that application, as aforesaid, has been made, and that unless the contrary be shown on or before the first day of the next term of this court, to be begun and held at the city of St. Louis, within and for the city of St. Louis, on the second Monday of September, next, an order will be made for the sale of the whole, or so much of the real estate of said deceased as will be sufficient for the payment of said debts; and it is further ordered that a copy hereof be published in some newspaper printed in the city of St. Louis, aforesaid, for four weeks before the next term."

The original order of sale was duly made at the September term, 1878, of the probate court of the city of St. Louis, on the 26th day of October, 1878, and finds due publication of the notice to those interested in the estate upon the order of the last June term of said court, and finds not sufficient personal assets to pay the debts of said estate; describes the lands, directs the appraisement before sale, and directs the sale thereof, or so much of them as necessary to pay the debts, at private sale.

At the September term, 1880, and on the 18th day of October, 1880, the administrator petitioned the court for a renewal order of sale, stating that he had been unable to make any sales under the order theretofore made. Upon this...