Feurth v. Anderson

• Citation: 87 Mo. 354
• Parties: FEURTH v. ANDERSON, Administrator, Appellant.
• Decision Date: 31 October 1885
• Court: United States State Supreme Court of Missouri

87 Mo. 354

FEURTH

v.ANDERSON, Administrator, Appellant.

Supreme Court of Missouri.

October Term 1885.

Appeal from Scott Circuit Court.--HON. J. D. FOSTER, Judge.

REVERSED.

L. B. Valliant and D. L. Hawkins for appellant.

(1) The record does not show that there was any appeal legally taken from the judgment of the probate court. R. S., sec. 293. The jurisdictional fact must appear on the face of the record. State v. Metzger, 26 Mo. 65; Hansberger v. Railroad Co., 43 Mo. 196; Schell v. Leland, 45 Mo. 289. The record does not show this fact, and it may be taken advantage of at any time. Henderson v. Henderson, 55 Mo. 534; Graves v. McHugh, 58 Mo. 499. (2) There was no pretense of an assignment, and the suit could only be brought in the names of H. Reinstadler and the plaintiff jointly. Dewey v. Carey, 60 Mo. 224. (3) There was not a scintilla of evidence tending to establish plaintiff's alleged cause of action. (4) The court erred in overruling defendant's several objections to the evidence of plaintiff.D. H. McIntyre and Marshall Arnold for respondent.

(1) It will be presumed that the probate court granted the appeal within the time prescribed by law, there being nothing in the record to the contrary. As to the circuit court, it cannot be presumed that it assumed jurisdiction where there was none. It is a court of general jurisdiction, and hence “everything is presumed in its favor.” Schell et al. v. Leland et al., 45 Mo. 289, 294. Presumptions should be invoked to support rather than overthrow judgments. Combs v. Smith, 78 Mo. 32, 41; Birney v. Sharp, 78 Mo. 73, 76. And the action of probate courts, “on subjects exclusively and originally confided to them, is entitled to the same weight as that of any other court of record.” Johnson v. Beazley, 65 Mo. 250, 256. The circuit court had original jurisdiction as well as appellate in this case (section 191, Revised Statutes, 1879), and when an appeal is taken, tries the case de novo not regarding any error, defect, or imperfection of the probate court. R. S. 1879, sec. 299. (2) Objections as to defect of parties come too late in this court for the first time. R. S., sec. 3519; Fowler v. Williams, 62 Mo. 403; Kellogg v. Malin, 62 Mo. 429; Donnan v. Printing Co., 70 Mo. 168. (3) The court sitting as a jury found for plaintiff, and this court will not disturb that finding. Gist v. Loring, 60 Mo. 487; Wright v. McPike, 70 Mo. 175, 180.

NORTON, J.

Plaintiff presented to the probate court of Scott county a demand for allowance against the estate of Paschal E. Ancill, deceased. The demand presented was based on the following account:

“Paschal Ancill to H. Reinstadler and Chas. Feurth, Dr. August 20, 1881.

To putting up new knotter on binder for harvest of 1882, with late improvements, malleable castings as per contract

$250 00”

The case was tried in said court on the twelfth day of February, 1883, that being the first day of the February term; the claim was disallowed, and judgment rendered for defendant. The record contains an order made by the probate judge, in vacation, on the twenty-sixth day of February, 1883, reciting that on that day plaintiff presented a bond and affidavit for an appeal from said judgment; that the bond was approved and the appeal granted.

On a trial de novo in the circuit court, judgment was rendered for plaintiff for two hundred and fifty dollars, which was ordered to be assigned to the fifth class of demands against the estate. From this judgment defendant appeals, and insists that, inasmuch as the statute requires in cases of this kind that when an appeal is taken in vacation, it must be taken within ten days after the expiration of the term of court at which the judgment is rendered, and inasmuch as the record in this case shows that the appeal was taken in vacation, but does not show that it was taken within ten days after the expiration of the said February term of the probate court; that the appeal was improperly allowed and gave no jurisdiction to the circuit court to hear and determine the cause. This point is not well taken, it having been ruled by this court in the case of City of Kansas v. Clark, 68 Mo. 588, that an appeal from an inferior court will be presumed to have been taken within the time allowed by law, when the record shows nothing to the contrary.

Plaintiff, on trial, offered the son of the plaintiff as a witness, who testified in substance as follows: That in the fall of 1881 he went with a man from St. Louis, at his request, to help him fix a reaper and binder on Ancill's place; they found the machine under a mill shed, and proceeded to fix it; they tightened the screws, put in two small wooden braces, and a new spur wheel...