Curtis v. La Force

• Citation: 29 S.W.2d 191
• Decision Date: 26 May 1930
• Docket Number: No. 16837.,16837.
• Parties: CURTIS v. LA FORCE.
• Court: Missouri Court of Appeals

29 S.W.2d 191

CURTIS v. LA FORCE.

No. 16837.

Kansas City Court of Appeals. Missouri.

May 26, 1930.

Rehearing Denied June 16, 1930.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

"Not to be officially published."

Action by E. W. Curtis against Ella La Force, executrix of the estate of Felix La Force, deceased. Judgment for plaintiff, and defendant appeals.

Reversed.

Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, for appellant.

Harding, Murphy & Tucker and Samuel A. Dew, all of Kansas City, for respondent.

ARNOLD, J.

This is an action upon a contract of guaranty, under which it is alleged the estate of Felix La Force was indebted to plaintiff, claimant, in the sum of $1,086.70. In the probate court there was a judgment in favor of defendant, executrix of said estate, from which plaintiff appealed. The trial de novo in the circuit court, before a jury, resulted in a verdict for plaintiff. From the judgment rendered thereon, after an unsuccessful motion for a new trial, defendant duly appealed.

Appellant makes thirteen assignments of error. In our view of the case, we need only address ourselves to the first point urged. Defendant therein insists that the trial court erred in overruling the objection to any trial of the cause and the introduction of any evidence because no notice was given, or the demand exhibited and presented in the manner required by the statutes to which our attention is directed. Further, that there was no waiver of such notice or demand.

The facts of record disclose that on September 13, 1923, plaintiff filed in the probate court of Jackson county, Mo., at Kansas City, the following:

"Affidavit to Demand Against Estate.

"State of Missouri, County of Jackson — ss.

"E. W. Curtis being duly sworn according to law, says that to the best of his knowledge and belief, he has given credit to the estate of Felix L. La Force, deceased, No. 23324, for all payments or offsets to which it is entitled, on the demand above described and that the balance there claimed is justly due.

                              "[Signed] E. W. Curtis
                

"Sworn and subscribed to before me, this 19th day of July, 1923.

"Witness my hand and official seal.

                  "[Seal.]      [Signed]   Pearl Ragland
                                             Notary Public
                

"My commission expires 10-30-26.

"In the Probate Court of Jackson County, Missouri, at Kansas City, E. W. Curtis, plaintiff, vs. Ella LaForce, Executrix of the Estate of Felix L. LaForce, deceased, defendant. No. 23324.

"Plaintiff states that the estate of Felix L. LaForce is indebted to him in the sum of ten hundred and eighty-six dollars and seventy cents ($1,086.70), for money borrowed; that all credits to the Estate of Felix L. LaForce, deceased, case No. 23324, for all payments or offsets to which the estate is entitled, on the demand above described, and that the balance there claimed is justly due, and that the above described amount is justly due.

"Wherefore, plaintiff asks that this claim be allowed in the sum of ten hundred eighty-six and 70/100 dollars.

                                 "[Signed] E. W. Curtis
                           "Kansas City, Mo. Dec. 27, 1922
                "Messrs. Alexander & Curtis,
                   "Room 6, 1822 Main St. Kansas City, Mo.
                

"Gentlemen: I wish to state that I will release all mortgages held by me on the personal property of Robert Estill LaForce at such time when seventy-five thousand dollars ($75,000.00) worth of stock is subscribed and paid for to the LaForce Farms Company, now being formed. [Signed] Felix L. LaForce.

"Further agreed:

"In the event the LaForce Farms Co. now being formed should not be completed or should fall through, I will refund to E. W. Curtis the $786.70 he paid me to reimburse me for $786.70 I paid Norman Bros. on 2nd mtg. on LaForce farms and also $300.00, which I paid to F. W. Taylor as commission on 1st loan of $10,000.00 to be made on LaForce farms on or before 2/18/23.

                             "[Signed] Felix L. LaForce."
                

The foregoing constituted the only pleadings and the presentment of the claim on plaintiff's behalf. In this connection it is noted that the originals of the papers making up the guaranty were not filed, but merely unverified copies thereof.

Of the record entries of the proceedings in the probate court, appear the following:

"In the Probate Court of Jackson County, Missouri, at Kansas City, E. W. Curtis, plaintiff, vs. Ella LaForce, Executrix of the Estate of Felix L. LaForce, deceased, defendant. No. 23324.

"Notice.

"To Ella La Force, Executrix, or Haff, Meservey, German & Michaels, her attorneys of record:

"You are hereby notified that I have filed claim in the Probate Court of Jackson County, Missouri, against the estate of Felix L. LaForce, deceased, and that the same will be called up for hearing on September 24, 1923.

                           "[Signed] Robert H. Worline,
                                    "Attorney for Plaintiff.
                

"Received copy of the above and foregoing notice this 13th day of Sept., 1923.

                                "[Signed] W. C. Michaels,
                                  "Attorney for Defendant."
                

Endorsed on back,

"Filed September 13, 1923, F. W. Klaber, Jr., Clerk."

On said September 13, 1923:

"E. Curtis vs. Ella LaForce, Executrix, Felix L. LaForce, deceased. No. 23324. Claim Filed.

"Comes plaintiff, and files herein for allowance against said estate, his claim in the sum of $1,086.70."

Thereafter on March 22, 1927, this order was made and entered:

"E. W. Curtis, Claimant, v. Ella LaForce, Executrix Felix LaForce, deceased. No. 23324.

"Rehearing of Counsel Set.

"Now on this day the court of its own motion sets rehearing of counsel for Monday the 26th day of March, 1927, at 2:00 o'clock P. M. in the matter of the claim of said claimant heretofore filed."

Thereafter and on March 28, 1927, the following entry was made, to wit:

"E. W. Curtis, Claimant, vs. Ella LaForce, Executrix, Felix L. LaForce, deceased. No. 23324.

"Now on this day the court hears the arguments of counsel for both sides, and this matter is by the court taken under advisement."

Thereafter and on March 30, 1927, the following finding and judgment was entered of record in said probate court, to wit:

"E. W. Curtis, Claimant, vs. Ella LaForce, Executrix, Felix L. LaForce, deceased. 23324.

"Now on this day the claim of said claimant heretofore filed, heard and taken under advisement, is taken up, and the court finds for the defendant executrix and orders that said claim be not allowed and that said executrix have execution for the costs herein."

It is in evidence, and conceded of record, that plaintiff did not personally serve upon the executrix of the estate any notice of his claim, or file in the probate court the instruments upon which his debt was predicated. The evidence is clear that there was no intention on the part of the attorney for the executrix to waive service, but his action in signing the notice shown...