Ex Parte Berkley
| Decision Date | 13 May 1932 |
| Docket Number | No. 32256.,32256. |
| Citation | 50 S.W.2d 651 |
| Parties | EX PARTE FRED J. BERKLEY, Petitioner. |
| Court | Missouri Supreme Court |
Randolph Laughlin for petitioner.
The jurisdiction of the notary. "It is a rule of universal application that jurisdiction, when limited, must affirmatively appear." State v. Swope, 72 Mo. 403; Ex parte O'Brien, 127 Mo. 477; Railroad v. Campbell, 62 Mo. 585. "There is no presumption of jurisdiction in favor of a notary." In the Matter of Whicker, 187 Mo. App. 100; Ex parte Krieger, 7 Mo. App. 367; In re Green, 126 Mo. App. 309. "A commitment of a witness for a refusal to testify, made by a notary public who has no power to take testimony, is void." In re Nitsche, 14 Mo. App. 213. The notary's jurisdiction to take depositions is dependent on the prior service of a valid notice to take depositions addressed to and served "on the adverse party or his attorney of record in the cause." R.S. 1929, sec. 1761; Burnett v. Prince, 272 Mo. 76; Tiede v. Fuhr, 264 Mo. 622; In re Whicker, 187 Mo. App. 101; In re Nitsche, 14 Mo. App. 213. The notice was addressed to the wrong party, and was void for that reason. The estate of a deceased person is a distinct legal entity, and it was the estate, and not the individuals, entitled to notice as "the adverse party." R.S. 1929, sec. 1761; Ballou v. Tilton, 52 N.H. 605; Cales v. Miller, 8 Gratt. (49 Va.) 6; Bowyer v. Knapp, 15 W. Va. 277; State ex rel. v. Holtcamp, 266 Mo. 347; St. Louis Union Trust Co., 21 B.T.A. 76; West v. Bailey, 196 Mo. 517; Judson v. Bennett, 233 Mo. 607; Williams v. Hund, 302 Mo. 451, 36 Fed. (2d) 207. The notice was served on the wrong party and was void for that reason. Charles Berkley was neither a member of Mrs. Marcella Berkley's family, nor was he at her usual place of abode at the time of service. Mueller v. Dreibelbis, 229 S.W. 240; Duncan v. Frank, 8 Mo. App. 286; Colter v. Luke, 129 Mo. App. 702; Grocery Co. v. Monroe, 142 Mo. 165. The statute is strictly construed; the burden is on respondent at all points, and all doubt must be resolved in favor of the liberty of the citizen. Burnett v. Prince, 272 Mo. 76; Mueller v. Dreibelbis, 229 S.W. 240; Ex parte Mallinkrodt, 20 Mo. 493; Patterson v. Fagan, 38 Mo. 70.
Douglas W. Robert for respondent.
Although service was had upon both administratrices, service upon one was sufficient. The statute provides that the notice may be served upon a member of the family. The definition of a family for the purpose of this statute includes a party's mother; Ellington v. Moore, 17 Mo. 424; a sister, Way v. Jones, 20 Mo. 75; a servant, L.J. Mueller Furnace Co. v. Dreibelbis, 229 S.W. 240. Service upon one administratrix was good because no matter how many administratrices or executors of an estate there are they are regarded as a single entity. Appeal of Farmer, 137 Md. 155; In re Appell, 192 N.Y. Supp. 136; In re Dorland, 106 N.Y. Supp. 616; 11 R.C.L. 405. The act of one administrator binds the other though the other does not consent. In re Bradley, 54 N.Y. Supp. 555; Affirmed 59 N.Y. Supp. 105; Pearse v. National Lead Co., 147 N.Y. Supp. 989; Crothers v. Crothers, 121 Md. 114; Haskell v. Manson, 200 Mass. 599. Thus one administrator can appeal from an order allowing a claim though the other does not agree to it. Hammond v. Frazier, 140 Mich. 371. Also the allowance or rejection of a claim by one administrator was held to be valid and binding upon the estate. Davenport v. Witt, 212 Ala. 114. So also two executors collecting fire insurance, without the consent of the third is valid and binding. Oldham's Trustee v. Ins. Co., 189 Ky. 844. So also, even if served on only one of several defendants, the service is good as to her. Millspaugh v. Ry. Co., 138 Mo. App. 31.
Proceeding in habeas corpus. Petitioner seeks discharge from confinement under judgment of a notary public committing him for contempt. He was committed on refusal to be sworn and give his deposition in a case entitled: "In the Matter of the Estate of John W. Thompson, Dec'd., appeal of Sara E. Thompson and Marcella T. Berkley, from an order of the Probate Court vacating the order of final settlement." The case is pending in the Circuit Court of the City of St. Louis. Appellants are administratrices of said estate. Respondent W.G. Coyle & Co., Inc., filed the motion in the probate court to set aside the order of final settlement of the administratrices. In the circuit court, respondent proceeded to take depositions before said notary.
The sheriff's return shows that he holds the prisoner under a writ of commitment issued by the notary on petitioner's refusal to be sworn as a witness and answer questions set forth in the writ of commitment and return of the sheriff.
[1] Petitioner contends that no notice to take depositions in said case was served on appellant administratrices and for that reason the notary was without authority to issue the writ of commitment.
Wm. O. McMahon, detective and private process server, made an affidavit of service that he served the notice on Sara E. Thompson in the city of St. Louis on March 2, 1932, by leaving a copy of same at the usual place of abode of said Thompson with a member of her family above the age of fifteen years. He also made an affidavit of service that he served the notice on Marcella Berkley in the City of St. Louis on March 3, 1932, by leaving a copy of same at the usual place of abode of said Berkley with a member of her family above the age of fifteen years.
The only evidence on the question of service on Marcella Berkley is the testimony of Charles Berkley and the affidavit of McMahon attached to the notice to take depositions.
Charles Berkley testified that he resided at 4950 Lindell Boulevard; that petitioner Fred Berkley is his brother and resided at 4944 Lindell Boulevard; that Marcella Berkley is the wife of Fred Berkley; that on the evening of March 3, 1932, he was at the home of petitioner; that on leaving and as he entered the hall a strange man offered him a paper and said: "This is for you, Mr. Berkley;" that he said: "My name is Charles Berkley, not Fred Berkley;" that the stranger said: "Well, you are served just the same;" that he then forced a paper into the lapel of his (Berkley's) coat; that by this time they were walking toward the stairs; that at the head of the stairs a third man joined them and they walked down together; that he afterwards learned that the man who thrust the notice to take depositions in his coat was named Wm. O. McMahon, and that the man who joined them at the head of the stairs was a detective named Arthur Abner.
McMahon testified before this court on the question of service of notice to take depositions. Respondent sheriff did not inquire of him as to service on Marcella Berkley. The testimony of Charles Berkley stands uncontradicted. He was not a member of the family of Marcella Berkley. It follows that the affidavit of McMahon that he delivered a copy of the notice to a member of her family is untrue. Respondent sheriff did not believe said affidavit of McMahon. In effect he abandoned the contention that Marcella Berkley was served by anticipating our ruling on the question. He stated in his brief that "although service was had upon both administratrices, service upon one was sufficient." There was no service on Marcella Berkley.
As to service on Mrs. Thompson, McMahon testified that on the afternoon of March 2, 1932, he went to the rear door of the Thompson home and rang the bell; that a maid partly opened the door and he inquired if she thought he was a burglar; that he then inquired if Nellie Bryan lived there; that she answered that no such person lived there or had lived there for five years; that she then closed the door.
He further testified that about nine o'clock that night he went to the front door of the Thompson home and rang the bell; that the porch was closed to the public by grille doors and he stood on the step; that the same maid opened the door and walked out onto the porch; that he inquired for Mrs. Thompson; that the maid said Mrs. Thompson was not at home; that he told her he had a paper for Mrs. Thompson; that through the openings in the grille door he delivered to her a copy of the notice to take depositions; that after taking the paper she dropped in on the porch; that he then left the premises. He identified Anna Kirby as the person who appeared at the rear door and the person to whom he delivered a copy of the notice while she was standing on the front porch.
Anna Kirby, the maid, testified that on the afternoon of March 2, 1932, the rear doorbell rang; that she opened the door not more than an inch; that through the opening she saw a stranger of large and powerful build; that he was about six feet tall and weighed about 230 pounds; that he inquired for some strange woman...
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