Childs & Childs v. Shannon's Adm'r

• Decision Date: 31 March 1852
• Citation: 16 Mo. 331
• Parties: CHILDS AND CHILDS, Defendants in Error, v. SHANNON'S ADMINISTRATOR, Plaintiff in Error.
• Court: Missouri Supreme Court

16 Mo. 331

CHILDS AND CHILDS, Defendants in Error,

v.SHANNON'S ADMINISTRATOR, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1852.

1. A. commenced a suit against a steamboat, under the boat and vessel act. B., the owner of the boat, as principal, and C. and D. as sureties, bonded the boat. Pending the suit, B. died. After judgment against the boat, on motion, a judgment was rendered against B.'s administrator on the bond. The administrator was not made a party to the proceeding, nor did it appear from the record that he had any notice of it. Held, the judgment against the administrator is not void, and however erroneous it may have been, no advantage can be taken of the error, except by a direct proceeding to reverse or set it aside.

Error to St. Louis Circuit Court.

The opinion of the court contains a sufficient statement of the facts.

J. A. Kasson, for plaintiff in error.

1. Judgment could not go against the administrator of the bondsman for damages adjudged against the boat. The authority for so rendering a judgment is purely statutory in any case, and it can only be rendered in a case within the statute in terms. The case of the death of one of the bondsmen is not provided for. It is a casus omissus. Here the death was before any liability had been incurred on the bond, and there was no debt against the intestate at his death. He died before verdict rendered. The practice act does not supply the omission. Boat and Vessel Act, secs. 9 and 21; Practice at Law, art. 5, secs. 2 to 7 inclusive; id. sec. 20 and secs. 15 to 17 inclusive; 3 Yerg. 413.

2. But if judgment could be rendered against the administrator of a deceased bondsman in such a case, the administrator is a new party, and entitled to notice or an opportunity to be heard. The whole proceeding, as to this administrator, was utterly void. Harrington v. People, 6 Barb. N. Y. Sup. Ct. Rep. 610; Buckmaster v. Carlin, 3 Scam. 104; Smith v. Ross & Strong, 7 Mo. 465; Anderson v. Brown, 9 Mo. 646; Newson v. Lycan, 3 J. J. Marsh, 440.

3. Parol evidence is inadmissible to supply the wants of the record. Noyes v. Butler, 6 Barb. Sup. Ct. Rep. 617.

4. There was an improper classification of the demand. It was not legally exhibited until the second year of the administration.

T. Polk, for defendant in error.

The court will presume everything to support the judgment of the court below, unless it is precluded by the entries on the record. If, therefore, a scire facias or a formal appearance was necessary before a judgment could be rendered against the appellant, Woodruff, in the case of N. & D. J. Childs against the steamer Lamartine, this court will presume that one or the other of them existed. Shumway v. Stillman, 4 Cow. 296. The question here is, not whether error is apparent on the record of the judgment, but whether the judgment is void. However erroneous it may have been, the defendant could only take advantage of it by appeal or writ of error. Judgment rendered against a person after his death is not necessarily void, but only erroneous. Warder v. Tainter, 4 Watts, 278.

The testimony of Mr. Crockett and Mr. Polk shows that the administrator of Shannon did in fact appear in the action in place of his intestate. He will, therefore, not be allowed to dispute the validity of the judgment. 7 Mo. Rep. 162; Starbuck v. Murray, 5 Wend. 160. It may be objected that the record does not show that Woodruff was formally made a party. To this it may be replied that it does not show that Shannon himself, in his life-time, was a party. He was never served with process, and never entered his appearance.

But when suit is instituted against a boat, and persons come in and enter into bond, approved by the clerk, as was that of Shannon, Wood and Shaw, in this case, the statute enacts that such intervention shall justify a judgment against them, just as it authorizes judgments to be rendered in an appeal case from a justice of the peace against the sureties in the appeal bond, as well as against the appellant. Although the boat is the party on the record as defendant, the judgment must be entered up, not against the boat, but against the bondsmen. Stat. of 1845, page 182, section 9, and page 185, section 21. Now the liability on the bond being one arising upon contract, does not die with the obligor, but survives against his administrator and follows his estate. But the statutory provisions for bringing in the representatives of persons, who die while proceedings in court are pending against them, have reference only to defendants as parties to suits. Stat. of 1845, page 823. It is urged that no judgment could have been rendered against Shannon's administrator, even though brought into court. This objection might be permissible, if this were an appeal from the judgment so rendered. But as it is not, the only objection that can be made to it is that it is void. The appellant cannot assign for error the admission of the evidence objected to by him, because the bill of exceptions does not show the specific grounds, nor any grounds, of objection. Cornelius v. Grant, 8 Mo. Rep. 59. In any event the evidence was admissible, as showing an appearance in fact by the administrator. It did not contradict the record, but, on the contrary, was perfectly consistent with it. The demand arising on the judgment was properly classified. Letters of administration were granted to Woodruff, on Shannon's estate, on the 15th of May, 1849, and the judgment against him was rendered on the 23d day of March, 1850, within a year.

SCOTT, Judge, delivered the opinion of the court.

1. This was a proceeding, begun in the Probate Court of St. Louis county, by the defendants in error against the plaintiff in error, as administrator of A. Shannon, deceased, for the purpose of obtaining satisfaction of a judgment rendered in the Circuit Court of St. Louis county against the plaintiff in error. The...