Estate of Harry A. Phillips v. Mutual Comm. Cas. Co.

• Decision Date: 07 April 1947
• Docket Number: No. 20806.,20806.
• Parties: IN THE MATTER OF THE ESTATE OF HARRY A. PHILLIPS, DECEASED, ROBERT D. FIZETTE, CARTER E. FIZETTE AND HELEN FIZETTE HILSINGER (PLAINTIFFS), RESPONDENTS, v. RAWLINS PHILLIPS, (DEFENDANT), MUTUAL COMMERCE CASUALTY COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

202 S.W.2d 107

IN THE MATTER OF THE ESTATE OF HARRY A. PHILLIPS, DECEASED, ROBERT D. FIZETTE, CARTER E. FIZETTE AND HELEN FIZETTE HILSINGER (PLAINTIFFS), RESPONDENTS, v. RAWLINS PHILLIPS, (DEFENDANT), MUTUAL COMMERCE CASUALTY COMPANY, A CORPORATION, APPELLANT.

No. 20806.

Kansas City Court of Appeals. Missouri.

Opinion delivered April 7, 1947.

Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

AFFIRMED.

Moss H. Silverforb and Chas. N. Sadler for appellant.

(1) A judgment to be valid and final must dispose of all the issues, and all the parties; otherwise, no appeal will lie therefrom. Ray et al. v. Missouri Christian College et al., 93 S.W. (2d) 1030; Hill-Belran Lumber Company v. Hammer Dry Plate Company, 162 S.W. (2d) 348-352; Stephens v. D.M. Oberman Manufacturing Company, 70 S.W. (2d) 899; Rock Island Implement Company v. Marr, 67 S.W. 586, l.c. 588; Seners et al. v. Williamson et al., 198 S.W. (2d) 368; Ford v. Ford, 24 S.W. (2d) 990, l.c. 992; Crow v. Crow, 100 S.W. 1123; Boden v. Johnson, 23 S.W. (2d) 186; Evans v. City of St. Louis, 198 S.W. (2d) 9. Such judgment may be attacked collaterally. Spangler-Bowers v. Benton et al., 83 S.W. (2d) 170; Abernathy v. Missouri Pacific Railway Company, 228 S.W. 486-487. (2) The Probate Court is without power to set aside a judgment or order upon a motion filed at a subsequent term. Smoot v. Smoot, 61 S.W. (2d) 373; Edwards v. Edwards, 66 S.W. (2d) 969; Conant v. Conant, 278 S.W. 90. (3) The Circuit Court was without jurisdiction to render a judgment against Robert D. Fizette, Helen Fizette-Hilsinger and Lee Ticehurst surety because its jurisdiction is based upon the validity of the judgment of the Probate Court rendered May 1, 1943, which judgment of the Probate Court was void for lack of power to set aside a former judgment upon a motion filed at a subsequent term, and while an appeal therefrom by Rawlins Phillips was pending in the Circuit Court. Federal Chemical Company v. Farmers Produce Exchange, 118 S.W. (2d) 1067, l.c. 1069; Pence v. K.C. Laundry Service Company, 59 S.W. (2d) 633, l.c. 635; United Cemeteries Company v. Strother, 119 S.W. (2d) 762-765. (4) The judgment of the Circuit Court against Robert D. Fizette, Helen Fizette-Hilsinger and Lee Ticehurst is not a final judgment from which an appeal would lie. Ray v. Missouri Christian College et al., 93 S.W. (2d) 1030; Hill-Benson Laundry Company v. Hammer Dry Plate Company, 162 S.W. (2d) 348-352; Stephens v. D.M. Oberman Manufacturing Company, 70 S.W. (2d) 899; Boden v. Johnson, 23 S.W. (2d) 186; Ford v. Ford, 24 S.W. (2d) 990, l.c. 992; Rock Island Implement Company v. Marr, 67 S.W. 586-588. Probate Court loses jurisdiction when an appeal is allowed. Kansas City v. Jones Store Company et al., 28 S.W. (2d) 1008; In re Niedringhaus v. Niedringhaus, 54 S.W. (2d) 79. The jurisdiction of the Appellate Court depends upon the jurisdiction and power of the lower court to render the judgment appealed from. Probate Courts possess only the powers granted to them by the constitution and statutes, together with such implied powers as are necessary to effectuate those expressly granted. State ex rel. Baker v. Bird, 162 S.W. 119, l.c. 122, 253 Mo. 569; 15 C.J., p. 1011, Sec. 426. (5) Rawlins Phillips, the judgment creditor in the judgment rendered May 1, 1943, against Robert D. Fizette, Helen Fizette-Hilsinger and Lee Ticehurst, extinguished said judgment by making a full settlement thereof with Lee Ticehurst and releasing him from all liability thereon. Phelps et al. v. Scott et al., 30 S.W. (2d) 71-75. (6) Mutual Commerce Casualty Company as surety on the appeal bond to the Supreme Court, would be entitled to recourse against Lee Ticehurst, a judgment debtor in the appeal from said judgment, for any amount it was required to pay upon said bond, if that judgment is held valid, hence his release released appellant. Phelps et al. v. Scott et al., 30 S.W. (2d) 71. (7) Even if Lee Ticehurst is held to be only a co-surety with Mutual Commerce Casualty Company, this appellant would be entitled to contribution from him and entitled to credit for the amount paid by him to Rawlins Phillips, to wit $532.90 if said judgment is held valid. Phelps et al. v. Scott et al., 30 S.W. (2d) 71, l.c. 75; Singleton v. Shepherd, 183 S.W. 1077; State ex rel. v. Matson, 44 Mo. 305; R.S. 1939. Secs. 3326, 3327. (8) Attorneys' fees are not recoverable in this case. Appleman, Insurance Law and Procedure, Vol. 10, p. 294, Sec. 6021.

John C. Meredith and Meredith & Harwood, for respondents.

(1) Taxation of costs on an appeal bond involves a matter which grows out of, but which is collateral or ancillary to the judgment in the main action or proceeding, or which is incident to such judgment. The court in rendering a judgment for costs, or damages and costs, on an appeal bond against the unsuccessful parties to the litigation has a wide discretion and may render judgment against the parties to the litigation on equitable principles. 20 C.J.S. 505; R.S. Mo. 1939, Sec. 1406 and Sec. 287; Crooks v. Crooks, 197 S.W. (2d) 678; Marsala v. Gentry, 232 S.W. 1046. (2) The Probate Court had exclusive jurisdiction of the Harry A. Phillips estate, which jurisdiction continued until his heirs and distributees were named and final settlement and distribution of the estate was made to such heirs and distributees and the administrator discharged. Ross v. Pitcairn, 179 S.W. (2d) 35; In re Mills Estate, 183 S.W. (2d) 369; State v. Fidelity Deposit Co., 298 S.W. 83; State v. Hughes, 123 S.W. (2d) 105; 24 C.J. 523, Sec. 1389. (3) Between successive sureties on different bonds given in a judicial proceeding, those last in time are primarily liable and those first in time secondarily liable. The sureties among themselves are liable in the inverse order of their undertakings and the surety on the prior bond may seek reimbursement from the surety on the later bond; the surety on the later bond is not entitled to contribution from the surety whose liability arose on a prior bond. The surety for the original debt against whom and his principals a judgment has been obtained can recover from a surety on a bond given by the principals to stay the judgment. 50 C.J., p. 315, Secs. 533-B and 534; Gary v. Swinney, 17 S.W. (2d) 505; Hoppe v. Boerger, 116 S.W. (2d) 195; Schuchman v. Roberts, 133 S.W. (2d) 1030. (4) The judgment and decree in the Circuit Court rendered June 29, 1944, is res adjudicata in this proceeding on motion for judgment against the Mutual Commerce Casualty Company, the surety on the appeal bond, as said judgment became final when the appeal to the Supreme Court was dismissed, no defense could be made by the principal judgment debtors and none can be made by the surety, the Mutual Commerce Casualty Company, as a surety can make no defense that could not be made by his principal. Kopitsky v. Schwenker, 85 S.W. (2d) 180; Home Insurance Company v. Savage, 103 S.W. (2d) 900; State ex rel. v. Blakemore, 275 Mo. 695; Union State Bank v. American Surety Co., 23 S.W. (2d) 1038; Jones v. Mastin, 60 Mo. App. 578.

BLAND, P.J.

This is an appeal from the judgment of the court against the appellant, the Mutual Commerce Casualty Company, upon an appeal bond on which it was the surety.

The transcript bought here by the appellant is not very satisfactory from the standpoint of disclosing the facts giving rise to this appeal. The scantiness of facts results from the failure of the appellant to introduce in evidence in the Circuit Court the records of the Probate Court bearing on this controversy. However, we glean from the transcript filed that Harry A. Phillips, a resident of Kansas City, died intestate about May 12, 1941; that Carlton R. Benton was duly appointed administrator of his estate by the Probate Court of Jackson County; that thereafter proceedings were begun in said court by the heirs and next of kin of deceased and one Rawlins Phillips, claiming to be his son, seeking to have their status as next of kin established and have a distribution of the proceeds of the estate made to them. The contest over the distribution of the estate was between the said Rawlins Phillips on the one hand, and Robert D. Fizette, a nephew of the deceased, Carter E. Fizette and Helen Fizette-Helsinger, children of a deceased nephew, (all hereinafter referred to as the Fizettes) on the other hand.

The transcript recites that this action was commenced in the Probate Court of Jackson County, Missouri, on December 21, 1942, by a motion requesting that the court declare the Fizettes the sole and only heirs at law of the deceased, and asking for a distribution. However, the recitations in the motion, itself, show that it was not the first proceeding in the case; that a like proceeding had been instituted by the Fizettes, and one by Rawlins Phillips; that one of the objects of the last proceeding by the Fizettes was to obtain a rehearing on their former application, which evidently had been denied, on the ground of newly discovered evidence. The motion also asked for the exclusion from the evidence of certain affidavits and documents that had theretofore been introduced in evidence by Rawlins Phillips as "heir claimant herein".

From the recitals of the judgment of the Probate Court made upon this last application by the Fizettes it appears that Rawlins Phillips had filed an application to be adjudged the heir and have distribution, and that a judgment had been rendered against him on October 1st, 1942. There is other information furnished by the transcript to the effect that from this judgment Rawlins Phillips appealed to the Circuit Court on October 22, 1942; that the appeal was dismissed by Rawlins Phillips on May 1, 1943; that on the same day the Probate Court, on the ground of newly discovered evidence, set aside the order and judgment rendered on October 1, 1942, wherein Rawlins Phillips was found not to be an heir and distributee of the estate of...