Caldwell v. Lockridge

• Decision Date: 31 July 1845
• Parties: CALDWELL v. LOCKRIDGE.
• Court: Missouri Supreme Court

9 Mo. 362

CALDWELL

v.LOCKRIDGE.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO JACKSON.

R. G. SMART, for Plaintiff. 1. The final settlement made by Caldwell in 1838 was, in every respect, in conformity with the law, and from the time of his resignation all his powers then ceased. Rev. Stat. 1835, title Administration, art. 1, §§ 30, 31. 2. The decision of the County Court, made at the February term, 1845, in ordering Rachel Lockridge, administratrix, to pay the amount due Caldwell on his final settlement as administrator of Jones Lockridge, deceased, made in 1838, was right and proper. See Rev. Stat. of 1835, title Administration, art. 5, §§ 11, 12, 13, 14, pp. 58, 59. And further, that as soon as Caldwell had made his final settlement and resigned his letters of administration, his powers then ceased, and he was no longer in court, and the court had no further control over him, and any order made by them affecting his rights was null and void. 3. That the second order of the County Court, made in 1838, rescinding a part of the final settlement of Caldwell, was null and void, the same having been done without notice to Caldwell, and the whole proceeding an ex-parte one. See 5 Monroe's Ky. R. 58; 7 Mo. R. 465, Smith v. Ross & Strong. 4. The allowance made to Caldwell, at his final settlement, by the County Court, in 1838, being warranted by the law, and being such an allowance as the court had a perfect right to make, the only way by which the opposite party could take advantage of the same was by an appeal to the Circuit Court. See Rev. Stat. of 1835, title Administration, § 15, art. 6; also art. 7, § 1. 5. The Circuit Court erred in dismissing the suit in that court, as a new trial should have been had, in case the County Court erred in the decision it made. See 8th article of Administration law, § 8.

HALL, for Defendant. 1. The notice, that plaintiff would move the court for an order requiring defendant to pay the amount of the first order, was altogether an informal proceeding in this cause. 2. The order of the Jackson County Court, made at its November term, 1838, offered and read in evidence by the plaintiff, Caldwell, is, to all intents and purposes, a judgment of the court, and as such, could only be enforced after scire facias, there being no evidence that execution had been sued out upon it within a year and a day after its rendition. See McKinney's Adm'r v. Davis, 6 Mo. R. 501; 1 Mo. R. 518, Dowsman v. Potter; 1 Tomlin's Law Dict. 707; 3 Mo. R. 436; 2 Bac. Abr. 727; 7 Mo. R. 469, Gamble, Adm'r, v. Hamilton, Adm'r. 3. The County Court had power to rescind the first order upon motion, as it was done at the same term at which it was made (June). Had the court a right to enter up another order at the same term at which the preceding one was rescinded? See Rev. Stat. Mo. 1835, p. 469; 7 Mo. R. 320, Ashby v. Glasgow and others; see, also, Bouvier's Law Dict. title Term; also Jacob's Law Dict. title Judgment. 4. The first order having been rescinded properly, it was clearly incompetent testimony to warrant the proceedings of the County Court at its term for March, 1844. 5. If the County Court erred in rescinding the first order and entering up the second order, Caldwell could have appealed to the Circuit Court. Rev. Stat. Mo. p. 63. 6. That as all the pleadings in the County Court, by statute, may be ore tenus, the various motions, appearances, testimony, &c., necessary to warrant a judgment in that court, will by a higher court be presumed, unless it otherwise appear by bill of exceptions. Rev. Stat. p. 56.

HICKMAN, on the same side. 1. Upon the trial of the appeal from the County Court, the Circuit Court committed no error in reversing the judgment of the County Court, and dismissing the case for want of sufficient notice. See Rev. Stat. pp. 55, 56, §§ 5, 17; and 5 Mo. R. 334. 2. The notice and motion of plaintiff in County Court shows that his claim is founded on a judgment of said County Court, and therefore he should have resorted to his writ of scire facias, and not attempt to enforce the collection of said judgment, nor to obtain another one by motion. Rev. Stat. p. 56, § 8; also 6 Mo. R. 501. 3. The County Court erred in giving judgment in favor of the plaintiff, Caldwell, because, 1st, he had not made oath or filed an affidavit with his claim, as required by law: Rev. Stat. p. 56, § 9; and, 2nd, because the judgment entered up was not against the assets of Lockridge, deceased, in the hands of his administratrix to be administered; and the Circuit Court having, in reversing the judgment of said County Court, decided in favor of the right party, the Supreme Court will not now interfere with its decision. 6 Mo. R. 250, 489; Mo. R. 416.

SCOTT, J.

Oliver Caldwell and Rachel Lockridge were appointed administrator and administratrix of the estate of Jones Lockridge, deceased. At the November term of the Jackson County Court in 1838, Caldwell having given the requisite notice, made a settlement of his accounts and resigned his letters of administration. At this settlement, the court allowed Caldwell a commission of six per cent. on the estate, amounting to $536 21. The settlement left the estate indebted to Caldwell $190 42, and an order was made directing the administratrix to pay him that sum. Afterwards at a subsequent day of the same term, an order was made correcting the former order, disallowing the amount of the commission allowed by that order. The effect of the correction was to bring Caldwell $101 53 in debt to the estate. This order was made without any notice to Caldwell. Afterwards in January, 1845, Caldwell gave the administratrix notice that at the next February term of the Jackson County Court, he should move for an order requiring the administratrix to pay him the amount allowed him by the court, at the November term, 1838, when he resigned his letters of administration. The County Court made the order accordingly. From this order an appeal has been taken to the Circuit Court, where the following judgment was entered: “Now at this day came the parties aforesaid by their attorneys, and the motion to dismiss the appeal heretofore filed, is taken up, which being seen and heard, and by the court fully understood, is by the court overruled; and thereupon neither party requiring a jury to try the issue herein, all and singular the premises are by them submitted to the court, which being seen and heard and by the court fully understood, the court hereby reverses the judgment of the court below, and for want of sufficient netice to said defendant, it is ordered that the cause be and is hereby dismissed.” From this judgment an appeal was taken to this court.

In the first place it will be proper to notice the nature of the order made by the County Court at the November term, 1838, requiring the administratrix to pay to Caldwell $190 42. From the argument of the cause, and the references made, it seems to have been regarded by the defendant in error as nothing more than a demand against the estate, which must be exhibited and allowed like all other debts against a deceased person's estate. This certainly is an erroneous view of the subject. When an administrator makes his settlement, and a balance is found for or against him, that settlement has the force of a judgment. It is precisely on the footing of all other allowances against an estate, and its payment may be enforced in like manner A court would not permit an executor or administrator to resign, who was in arrears to an estate, until the balance against him had been settled. He would not thus be permitted to escape the control of the court in coercing the payment of the debts he may owe the estate.^(a)

There is no foundation in law for the idea that a scire facias was necessary to revive the judgment rendered by the County Court at the November term, 1838. Whatever may be the law in regard to the necessity for such writs to revive judgments after a year and a day in courts proceeding according to the course of common law, there is no pretense that such laws are applicable to allowances made against estates in our County Courts. By the common law, a judgment against an executor or administrator was an admission of assets sufficient to satisfy it. If suits were instituted on claims, and there were no assets to satisfy them, upon plene administravit pleaded, a judgment of assets quando acciderint was entered, on which execution could be issued when it was shown by proceedings on scire facias that assets had subsequently come to the hands of the executor or administrator. All claims against an estate are by our laws permitted to be matured into judgments without regard to the means of satisfying them or to the solvency of the estate. There is no such...