Cook's Estate v. Brown

• Decision Date: 07 May 1940
• Docket Number: 36557
• Citation: 140 S.W.2d 42,346 Mo. 281
• Parties: In re Estate of Isaac T. Cook v. David Brown, Appellant
• Court: Missouri Supreme Court

140 S.W.2d 42

346 Mo. 281

In re Estate of Isaac T. Cook v. David Brown, Appellant

No. 36557

Supreme Court of Missouri

May 7, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Charles A. Lich for appellant.

(1) The revival of the cause of action against the executors of the decedent's estate was tantamount to filing the Illinois judgment in the probate court for allowance, inasmuch as the circuit court has concurrent jurisdiction with the probate court in allowing claims against a decedent's estate. Sec. 189, R. S. 1929; Bank v. Clifton, 263 Mo. 200. (2) The judgment of the circuit court allowing the claim and certifying the same to the probate court for classification did not merge the Illinois judgment into the judgment of the circuit court and did not destroy the vitality of the Illinois judgment. Wolford v. Scarbrough, 21 S.W.2d 777; Lilly-Brackett Co. v. Stonemann, 163 Cal. 632 129 P. 483, 42 L. R. A. (N. S.) 360, Ann. Cas. 1914A, 364; Weeks v. Pearson, 5 N.H. 324; Bates v. Lyons, 7 Paige, 85; Armour Bros. Bkg. Co. v. Addington, 1 Ind. T. 304, 37 S.W. 100; Wells v. Schuster-Hax Natl Bank, 23 Colo. 534, 48 P. 809; Griswold v. Hill, Fed. Cas. No. 5836; Van Winkle v. Owen, 54 N.J.Eq. 253, 34 A. 400; Springs v. Pharr, 131 N.C. 193, 42 S.E. 590, 92 Am. St. Rep. 775; In re Williams, 298 N.Y. 32, 101 N.E. 853, 46 L. R. A. (N. S.) 719. (3) The judgment of the Superior Court of Cook County, Illinois, under the decisions of this court, and under the provisions of Article IV, Section 1, of the Constitution of the United States, is entitled to full faith and credit and must be treated as though the Illinois judgment were rendered by a Missouri court of competent jurisdiction. Tootle v. Buckingham, 190 Mo. 180; Howey v. Howey, 240 S.W. 450.

E.W. Banister for respondent.

Inasmuch as it is the judgment that was rendered by the Circuit Court, City of St. Louis, Missouri, after the death of Isaac T. Cook that is to be classified, Section 182, Revised Statutes 1929, fixes very definitely that it must go in the fifth class, and, therefore, there can be no change through this action. Gainey v. Sexton's Admr., 29 Mo. 449; Harness v. Green's Admr., 20 Mo. 316. But appellant's counsel refers to the first two cases as very old cases, and says they have not been cited nor approved in any subsequent case. So far as we have been able to ascertain, there has been no occasion to cite either of these cases, nor has there been any decision on this question in the State of Missouri since these cases were decided, so far as we know. Appellant says that these cases have been overruled in effect, but we have found no case which would answer this description. The two cases cited by appellant are not in point, to-wit: Tootle v. Buckingham, 190 Mo. 183; Howey v. Howey, 240 S.W. 450. Section 1, Article IV of the Constitution reads as follows: "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

OPINION

Hays, P.J.

Appeal from a judgment of the circuit court of the City of St. Louis which affirmed a judgment of the probate court denying to a demand, filed by the present appellant against the estate of Isaac T. Cook, deceased, classification as a fourth class claim and placing it in the fifth class. On September 21, 1931, during the lifetime of Cook, appellant obtained a judgment against him in the superior court of Cook County, Illinois. Later he brought suit on this judgment in the circuit court of the City of St. Louis. Before trial Cook died. Appellant then revived the action against Cook's executors and the circuit court rendered judgment in his favor and certified the same to the probate court. Appellant there asked that this judgment be classified in the fourth class because it was founded on a judgment rendered against Cook during his lifetime. The probate court refused to do so and placed the claim in the fifth class, and the circuit court, on appeal, sustained that ruling.

The Illinois judgment appears to have been rendered upon warrant of attorney. Under this form of procedure a clause is inserted in a note or other contract for the payment of money to the effect that, if the obligor defaults, any attorney is empowered to enter his appearance in a court of record, waive the issuance and service of process and consent to judgment against him. After default, suit is filed in a court of record; some attorney, usually unknown to the obligor, enters the latter's appearance as defendant and judgment by confession is taken. The courts of Missouri do not approve such procedure, but where a sister state allows the practice and a judgment based thereon is duly rendered upon such a contract made in the state in which the proceeding is brought and in accordance with the authority contained in the contract, our courts have held that it is entitled to full faith and credit in Missouri. [First National Bank of Kansas City v. White, 220 Mo. 717, 120 S.W. 36. Cf. Vennum v. Mertens, 119 Mo.App. 461, 95 S.W. 292; O'Connell v. Smith et al., 131 S.W.2d 730.]

The mere fact that the St. Louis circuit court rendered judgment on this claim in favor of appellant does not in itself entitle the demand to be placed in the fourth class, for this judgment was rendered after Cook's death. Under Section 182, R. S. Mo. 1929, a judgment is entitled to fourth class standing only when rendered against the defendant "in his lifetime." Where, as here, a suit is brought against a living person and he dies before trial and the action is revived against his executor or administrator, such revival has the same force and effect as the filing of a demand on that date in the probate court. [Section 184, R. S. Mo. 1929.] So, in the instant case, we must assume that the situation is the same as if appellant had filed in the probate court a demand based upon the Illinois judgment.

It is contended by the appellant and conceded by the respondent that the judgment in Missouri did not supersede the Illinois judgment and that the latter was not merged in or destroyed by the former. [Wolford v. Scarbrough, 224 Mo.App. 137, 21 S.W.2d 777, and cases cited.]

The decisive question then is this: Does the fact that appellant's demand was founded upon a judgment rendered by a court of a sister state during Cook's lifetime entitle it to be placed in the fourth class? The answer to that question depends on the construction to be given to the word "judgment" as used in Section 182. This court has held that the word "judgment," so used, refers only to domestic judgments and not to those rendered by the courts of sister states. [Harness v. Green's Admr., 20 Mo. 316; Gainey v. Sexton, 29 Mo. 449.] These cases, although decided at an early date, have never been overruled nor criticized by this court.

Appellant contends that such a construction of Section 182 is violative of the full faith and credit clause contained in Section 1 of Article IV of the Constitution of the United States. The same question was before the Supreme Court of the United States in the case of McElmoyle v. Cohen, 38 U.S. 312, 10 L.Ed. 177. The facts in that case clearly parallel those in the case at bar. The plaintiff therein had obtained judgment against...