Dodson v. Scroggs

• Decision Date: 31 January 1871
• Citation: 47 Mo. 285
• Parties: W. G. DODSON, ADMINISTRATOR de bonis non OF WILSON GRAY, Plaintiff in Error, v. W. S. SCROGGS, ADMINISTRATOR OF EMERSON C. SCOTT, AND ANGELINE RECTOR, ADMINISTRATRIX OF GRIGGSBY RECTOR, Defendants in Error.
• Court: Missouri Supreme Court

47 Mo. 285

W. G. DODSON, ADMINISTRATOR de bonis non OF WILSON GRAY, Plaintiff in Error,

v.W. S. SCROGGS, ADMINISTRATOR OF EMERSON C. SCOTT, AND ANGELINE RECTOR, ADMINISTRATRIX OF GRIGGSBY RECTOR, Defendants in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to Third District Court.

J. F. Hardin, for plaintiff in error.

The Cedar Circuit Court clearly had jurisdiction of the subject-matter of the suit, and the parties voluntarily submitted themselves to that jurisdiction, and can not be heard to question it after trial and judgment. (Brady v. Richardson, 18 Ind. 1; Ludwick v. Beckamire, 15 Ind. 198; Paulding v. Hudson, 2 E. D. Smith, 38; Buckley v. Hielbrumer, 7 Ind. 488; Cooper v. Reeves, 13 Ind. 53; Hills v. Miles, 13 Wis. 625; Walker et al. v. Parker, 22 Barb. 323; Brown v. Webber, 6 Cush. 560; Simmons v. Parker, 1 Metc. 508; Cleveland v. Welsh, 4 Mass. 592; Belknap v. Gibbons, 13 Metc. 471; Nash v. Brophy, id. 476; Campbell v. Wilson, 6 Texas, 379; Hembree v. Campbell, 8 Mo. 572; Bellis v. Logan, 2 Mo. 4.)

Buller & Sherwood, for defendants in error.

I. Under the statute (Sess. Acts 1845, p. 70, § 4) the suit in this case should have been brought in the Probate Court of Dade county, and not in the Circuit Court. (State v. St. Louis County Court, 38 Mo. 402; id. 529; Miller v. Woodward, 8 Mo. 169; Overton v. McFarland, 15 Mo. 313; Powers v. Blakey's Adm'r, 16 Mo. 437.)

II. The appearance of the defendants and their proceeding to trial did not waive their right to raise the question of want of jurisdiction even in the appellate court. (2 Wagn. Stat. 1015, § 10; Stone v. Corbett, 20 Mo. 350; Lindell's Adm'r v. Hann. & St. Jo. R.R. Co., 36 Mo. 543.)

III. Aside from this view of the case, the petition states no facts sufficient to constitute a cause of action. Certain defects in pleadings may be aided and cured by verdict, but the defects in this case are not of that character. (Jones v. Fuller, 38 Mo. 363; State, to use of Tapley, v. Matson et al., 38 Mo. 489; State, to use of Reyburn, v. Ruggles, 20 Mo. 99.)

BLISS, Judge, delivered the opinion of the court.

Defendant's intestates were sureties upon the administration bond of one E. T. Berry, original administrator of the estate of said Wilson Gray; and said administrator having defaulted, he was removed, and this suit was brought upon his official bond. It was instituted in the Circuit Court of Dade county, but, on motion of defendants, was removed to the Circuit Court of Cedar county, where the plaintiff recovered judgment. Defendants now object to the judgment from the fact that by a local act (Sess. Acts 1845, p. 70) applicable to the county of Dade, “exclusive, original jurisdiction” is given to the Probate Court of the county “to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator or intestate.” Admitting the force of this objection so far as the Circuit Court of Dade is concerned, the plaintiff contends that in Cedar county the Circuit Court has the general jurisdiction given Circuit Courts of the State, which covers the subject-matter of this suit; and the parties having voluntarily appeared and submitted to its authority over their persons, they can not now complain.

But how can the Circuit Court of Cedar or of any other county have authority to try causes against executors or administrators of Dade, when the statute says that the Probate Court alone shall have the right to try them? The argument supposes that the statute contains a prohibition against the authority of the Circuit Court of Dade in these cases, leaving other courts unaffected, but such is not its effect. The exclusive jurisdiction given to the Probate Court of Dade, by implication prohibits all other courts from acting, the Circuit Court of Cedar as well as that of Dade. The authorities cited by counsel for plaintiff abundantly show, and only show, that the right to object to jurisdiction over the person may be waived; but the law alone, and not consent of parties, must decide what matters each particular court may hear and determine. The authority of the Cedar Circuit Court being thus cut off, the judgment could not have been authorized.

The petition is also worthless. The representative character of the plaintiff and his relation to the debt may sufficiently appear in the body of the petition to save the case after verdict. But the...