Corson v. Waller

• Decision Date: 01 February 1904
• Citation: 78 S.W. 656,104 Mo. App. 621
• Parties: CORSON v. WALLER.
• Court: Missouri Court of Appeals

78 S.W. 656

104 Mo. App. 621

CORSON v. WALLER.

Court of Appeals at Kansas City, Missouri.

February 1, 1904.

ADMINISTRATOR — ACTION — NOTICE — STATEMENT OF CLAIM—AMENDMENT—APPEAL.

1. Under Rev. St. 1899, § 188, providing that any person may exhibit his demand against a decedent's estate by serving on the administrator a notice of the amount and nature of the claim, a notice stating that the claimant will present for allowance a claim founded on two

receipts from the decedent, which are set out, is insufficient in not stating the amount and nature of the claim.

2. Under Rev. St. 1899, § 4079, providing that the statement of plaintiff's cause of action may be amended in the appellate court to supply any omission when substantial justice will be promoted thereby, but no new item shall be added, a notice to an administrator containing receipts from decedent on which a claim against his estate is based, and stating that it will be presented for allowance, as required by section 197, on which notice the claim is tried in probate court, is not a nullity, but may be amended on appeal to the circuit court by adding a statement of the "amount and nature of the claim," as required by section 188.

Appeal from Circuit Court, Cooper County; James E. Hazell, Judge.

Proceeding by James M. Corson against John A. Waller, administrator of the estate of William H. Glasgow, deceased. From a judgment dismissing the cause, plaintiff appeals. Reversed.

C. C. D. Carlos and Jno. Cosgrove, for appellant. W. M. Williams and C. D. Corum, for respondent.

SMITH, P. J.

The plaintiff delivered to the defendant administrator the following notice:

"To John A. Waller, administrator of the estate of Wm. H. Glasgow, deceased: Take notice that at the next term of the probate court of Cooper county, Mo., to be held at the court house in the city of Boonville, in said county, on the second Monday of August, 1902, on the first day of said term, or as soon thereafter as I can be heard, I shall present to said court for allowance against said estate a demand founded upon the following, to wit:

                                   "`October 15, 1900
                  "`Received of J. M. Corson the sum of
                $58.50, on the H. M. Keevil note
                                    "`W. H. Glasgow.'
                                  "`December 13, 1900
                  "`Received of J. M. Corson the sum of
                $67.85 in full payment of the H. M. Keevil
                note.                    W. H. Glasgow
                  "`June 25, 1902. J. M. Corson
                  "`State of Missouri, County of Cooper, ss.
                J. M. Corson, the above named claimant,
                makes oath and says, that to the best of his
                knowledge and belief he has given credit to
                the estate of William H. Glasgow, deceased,
                for all payments and offsets to which it is
                entitled and that the balance claimed is justly
                due.                         J. M. Corson.
                  "`Subscribed and sworn to this 30th day
                of June, 1902.
                         "`C. C. D. Carlos, Notary Public.'"
                

On which notice there was indorsed in writing by the administrator the waiver "of service of any notice on me of the presentation of the above demand to the probate court," etc. On August 11, 1902, the parties appeared before the probate court, when and where there was a trial on the merits, resulting in judgment for defendant. An appeal was taken by plaintiff to the circuit court, where plaintiff, by leave of court, filed an amended statement, which was as follows:

"Plaintiff, by leave of court first had and obtained, for his amended statement herein states that he and Wm. H. Glasgow, deceased, on the ____ day of ____, 1898, executed and delivered their joint note to H. M. Keevil for the sum of $117; that, in order to settle and pay off said note, he paid to Wm. H. Glasgow, deceased, on the 15th of October, 1900, the sum of $58.50, and on the 13th of December, 1900, * * * the further sum of $67.85, both of which sums so paid by plaintiff to said Wm. H. Glasgow, said Glasgow promised and agreed to pay and cause to be credited on the note to the said H. M. Keevil, which payments will appear by receipts dated on the dates above given, and herewith filed, and marked Exhibits A and B; that said Glasgow failed and neglected to pay said sums to said H. M. Keevil, and failed to have said sums or either of them credited on said note so held by said Keevil; that since the death of said Glasgow the said Keevil instituted a suit against John A. Waller, as administrator of the estate of said Wm. H. Glasgow, and plaintiff on said note, before J. L. Stephens, Esquire, a justice of the peace of Kelly township, Cooper county, Mo., and recovered judgment for the amount due on said...