Ewing v. Brooks

• Decision Date: 31 October 1878
• Citation: 69 Mo. 49
• Parties: EWING, Plaintiff in Error, v. BROOKS.
• Court: Missouri Supreme Court

69 Mo. 49

EWING, Plaintiff in Error,

v.BROOKS.

Supreme Court of Missouri.

October Term, 1878.

Error to Cass Common Pleas Court.--HON. J. H. PAGE, Judge.

C. W. Sloan for plaintiff in error.

D. K. Hall for defendant in error.

HENRY, J.

On the 20th day of January, 1872, J. R. Cline and R. B. Higgins executed their promissory note for $1,050, payable ten days thereafter, to Isaac Treadway, who assigned it to the plaintiff, Ewing. On the 9th day of April, 1872, plaintiff instituted a suit on said note in the circuit court of Cass county, against Cline and Feely, the administrators of Higgins. Cline afterwards died, and the suit was revived against James Blair and Nettie Cline, administrator and administratrix of his estate. Subsequently their letters were revoked, and Brooks was appointed administrator de bonis non, and the suit was revived against him. There were several continuances of the cause, and finally at the June term, 1874, of said court, a motion was filed by defendants to dismiss said cause for want of jurisdiction, and the court in disposing of said motion, instead of dismissing the cause, determined that it had ceased to have original jurisdiction, and that by the act of the Legislature, approved March 17th, 1873, the common pleas court of Cass county had exclusive original jurisdiction of the cause, and ordered that it be transferred to said court, which was accordingly done. At a regular term, 1874, of said common pleas court, defendants failing to appear, a judgment was rendered against them for $1,217. On the same day defendants filed their motion in arrest of judgment and to dismiss the cause on the ground that the court had no jurisdiction, and the circuit court had no authority to transfer the cause. At the January term, 1875, of said court, said motion was sustained and the cause dismissed, and from that judgment plaintiff has appealed.

The suit was properly commenced in the circuit court of Cass county. While pending there Cline died, and the Legislature passed an act amendatory of the act establishing the Cass county court of common pleas, approved March 17th, 1873, conferring upon said court exclusive original jurisdiction within and for said county, of actions against executors and administrators upon demands against them in their representative capacity. There is no provision in that act requiring causes pending in the circuit court against executors and administrators to be transferred to that court. There is nothing in the act to...