Brown v. Weatherby

• Decision Date: 31 October 1879
• Citation: 71 Mo. 152
• Parties: BROWN v. WEATHERBY et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

71 Mo. 152

BROWN

v.WEATHERBY et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1879.

Error to DeKalb Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

S. S. Brown and J. D. Strong for defendant in error.

Bennett Pike for plaintiffs in error

SHERWOOD, C. J.

This was a proceeding under section 67, page 81, 1 Wagner's Statutes, originating in the probate court of DeKalb county. One Weatherby, as public administrator, had formerly in his charge the estate of Hardwick. He failed, on ceasing to act in that capacity, to deliver to his successor, Brown, the assets of the estate, and the latter, therefore, issued a notice to Weatherby, and his official sureties, informing them that he, at the next term, would move for a judgment against them, for the rendition of the assets of the estate to him, the said administrator de bonis non. Three of the sureties were, but the former public administrator was not, served with notice. The sureties who were served appeared and made defense. The circuit court, on appeal had, found that Weatherby had in his hands unaccounted for, $2,040.10 belonging to said estate, and gave judgment against both the former public administrator and his sureties, for that sum.

I.

1. PROCEEDINGS BY ADMINISTRATOR DE BONIS NON TO COMPEL FORMER ADMINISTRATOR TO ACCOUNT: practice: notice.

The chief question in this case is, whether the court had any authority to render judgment against the sureties when their principal was not sued, and did not appear. It is among the fundamentals of the law that a personal judgment rendered without opportunity to the party sued of being heard, should not be permitted to stand. It was expressly held in Wickham v. Page, 49 Mo. 526, that though no notice is in terms required by section 67, yet the law will of itself, and of necessity, imply that notice be given to the party against whom judgment is asked, and this ruling is in accord not only with first principles, and the case just cited, but with the earlier one of Laughlin v. Fairbanks, 8 Mo. 370. This point, so plain, both upon reason and authority, would scarcely seem to need elaboration. The proceeding in question is summary, and, therefore, to be strictly construed in accordance with a familiar principle.

The section being considered evidently contemplates the personal presence of the late administrator in order that he may obey the order of the court and deliver to his successor the assets of the estate. He cannot be deemed disobedient to the order of the court, unless notified that such an order will be made, and opportunity be thus afforded him to either yield obedience to that order, or else show lawful excuse why the order should not go. And the liability of the sureties is dependent upon that of their principal; if he is not liable in consequence of no assets of the estate being in his hands, or because he has already, without being so ordered, delivered such assets to his successor, then they are not liable. In order that it may be adjudicated whether he be thus liable, it is of first necessity that opportunity be given him, touching the things alleged against him. In illustration of this the case of Caldwell v. Lockridge, 9 Mo. 362, may be cited. There the administrator having given notice, and made final settlement, was discharged. After such discharge and in the absence of the administrator, but before the close of the term, the matter of the settlement was opened, and a different settlement was made, and held, that such settlement thus made was a nullity. This ruling evidently proceeds upon the theory that notice is a conspicuous and indispensable element of jurisdiction, and that the principle is applicable as well to administration proceedings as to any other whatsoever. In the case at bar, either through resignation, or else expiration of his term...