Ewing v. Taylor

• Decision Date: 31 October 1879
• Citation: Ewing v. Taylor, 70 Mo. 394 (Mo. 1879)
• Parties: EWING v. TAYLOR, Plaintiff in Error.
• Court: Missouri Supreme Court

70 Mo. 394

EWING

v.TAYLOR, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1879.

Error to Ralls Circuit Court.--HON. JOHN T. REDD, Judge.

AFFIRMED.

Waters & Winslow with Harrison & Christian for plaintiff in error, cited in argument 2 Territorial Laws Mo., 104; Rush v. Rush, 19 Mo. 441; Smith v. Rollins, 25 Mo. 408; Life Ins. Co. v. Clover, 36 Mo. 392; 1 Wag. Stat., § 4, p. 790; b., § 11, p. 791; 2 Wag. Stat., § 31, p. 921; Manning v. Hogan, 26 Mo. 570; Baker v. Stonebraker, 36 Mo. 338; Humphreys v. Lundy, 37 Mo. 320; Sublett v. Nclson, 38 Mo. 487; Stokes v. Sanborn, 45 N. H. 274; Pennington v. Gibson, 16 How. 65; 1 Wag. Stat., § 8, p. 102; § 27, p. 105; § § 15, 16, p. 104; §§ 13, 14, p. 103; Kennerly v. Shepley, 15 Mo. 640; McKinney v. Davis, 6 Mo. 501; Carondelet v. Desnoyer, 27 Mo. 36.

W. H. Hatch and James Carr for defendant in error, cited in argument 1 Wag. Stat., § 1 p. 101; 2 Wag. Stat., § 1, p. 1051; Townsend v. Cox, 45 Mo. 401; Finley v. Caldwell, 1 Mo. 512; Manning v. Hogan, 26 Mo. 570; Humphreys v. Lundy, 37 Mo. 320; Sublett v. Nelson, 38 Mo. 487; Kerr's Admr. v. Wimer's Admr., 40 Mo. 544.

NORTON, J.

On August 19th, 1873, the judge of probate of Ralls county filed in the office of the clerk of the circuit court of said county, a transcript of the record of the probate court of said county in this cause, on an appeal from the judgment of said court, from which it appears that on June 10th, 1873, Martha A. V. Taylor, by her trustee, presented a petition to the said probate court asking that a certain judgment of the Ralls circuit court rendered March 27th, 1858, be classified against the estate of Thomas Taylor, deceased, in the fourth class of demands; that the parties appeared and submitted the matter to the court, and that the court decided against the demand. Said petition alleges that on March 27th, 1858, in an action for divorce between Martha A. V. Taylor and Thomas Taylor, the deceased, then pending, the circuit court of Ralls county adjudged, among other things, that Thomas Taylor should, on June 1st, 1858, and on the same day in each year thereafter, until further ordered, pay to Henry C. Wellman, as trustee for said Martha, $80 for the support of an infant child, the issue of the marriage thereby annulled; that Taylor paid the amount regularly up to June 1st, 1863, and thereafter failed and refused to make any further payments; that he died intestate in 1872, and Eliza A. Taylor and Alonzo Taylor became his administrators: that said judgment had not been modified, and that the infant child had remained with and been maintained by said Martha ever since the divorce. It was asked that the judgment be classified. From the judgment of the probate court refusing to classify said demand, an appeal was granted and perfected to the Ralls circuit court.

On March 15th, 1875, the cause having been continued at the previous terms, the parties appeared, and upon the suggestion of the death of the former trustee, William H. Ewing was substituted, and entered his appearance and accepted the trust. The death of Alonzo Taylor was also suggested, and the suit abated as to him. The case was submitted to the court by consent, August 28th, 1875, and upon a hearing judgment was rendered against the estate for $1030.20, and the clerk was ordered to certify the judgment to the probate court for classification, from which defendant has appealed to this court.

On the trial plaintiff read in evidence the decree mentioned in the petition. The only part of it which has any relevancy to the point presented for our consideration, is as follows: “And it is further decreed by the court, by consent of the parties hereto, that the defendant, on the 1st day of June, 1858, and on the same day of each year thereafter, until further ordered, pay to Henry C. Wellman, Esq., the sum of $80, to be by him paid, when so received, to plaintiff, for the support of the infant child, the issue of said marriage, and upon said child arriving at age, that he pay to said child the sum of $1,000; and that plaintiff have execution to enforce the orders herein.” It was admitted that no payment had been made under the decree since June 1st, 1863, and the mother of Richard Taylor, the infant child referred to in the petition, testified that he would be eighteen years old in October, 1875.

1. ADMINISTRATION: judgment; limitations.

It is not necessary to notice the other evidence introduced in the case, inasmuch as it has no bearing on the question presented for our determination, which is, whether the court acted properly in refusing to give the following instruction asked by defendant, viz: “It appearing to the court from the record read in evidence, that the judgment sought to be classified in the Ralls county probate court as a demand against the estate of Thomas Taylor, was rendered more than ten years previous to its presentation for classification in and by said probate court, and that the same had not been revived within ten years after the rendition of said judgment; that the same could not be classified by said court as a demand against said Taylor's estate, and the finding and judgment must be for defendant.” It is insisted by counsel in support of the refused instruction that, as no execution can be issued under the...