Gamble v. Gibson

• Decision Date: 31 October 1884
• Citation: 83 Mo. 290
• Parties: GAMBLE et al., Appellants, v. GIBSON, Executor.
• Court: Missouri Supreme Court

83 Mo. 290

GAMBLE et al., Appellants,

v.GIBSON, Executor.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

John W. Dryden for appellants.

The court of appeals erred in holding that the case, after it was sent back to the circuit court, was not open for a retrial and that the action of that court in referring the issues arising on the seventh exception to Judge Holmes was error. The proceeding was a statutory one, or one at law, and after the reversal by the Supreme Court was open for a re-trial. State v. Newkirk, 49 Mo. 472; Sharpe v. Johnston, 76 Mo. 660; Rev. Stat., 1879, sec. 3623; O'Neil v. Capelle, 62 Mo. 202; Moniteau Bk. v. Miller, 73 Mo. 192. Even in equity cases as well as at law, whenever the judgment of the lower court is reversed and no new judgment is rendered by the appellate court, nor any specific directions given by it in remanding the case, the case goes back for a new trial. State ex rel. v. St. Louis Circuit Court, 41 Mo. 574; Shroyer v. Nickell, 67 Mo. 589; Chouteau v. Allen, 74 Mo. 59; Lackland v. Smith, 75 Mo. 307. The circuit court also erred in not sustaining the appellants' exceptions to the report of the referee Holmes. The circuit court also erred in confirming the finding of referee Farish as to the appellants' exception relating to the profits made by the executor on the Nineteenth street houses ( Jamison v. Glasscock, 29 Mo. 191; Rea v. Copeland, 47 Mo. 76), on the Morgan street houses and on the executor's credit for commissions. The referee allowed the executor 5 per cent. commission, which was wrong, as the executor has not faithfully administered the estate. Wolf v. Berning, 74 Mo. 100; DeGall's Estate, 2 Watts 566; Ex parte Cassel, 3 Watts, 442; Smith v. Kennard, 38 Ala. 695. The appellants as the prevailing parties in the litigation with respondent as to his final settlement as executor were entitled to recover their costs of him. R. S., 1879, secs. 990 and 998; 1 W. S., 1872, p. 343, §§ 6 and 14.

Charles Gibson pro se.

HOUGH, C. J.

As the history of this case is succinctly stated in the opinion of the court of appeals we adopt the statement there made, making such changes therein as change of form has rendered appropriate.

At the December term, 1867, of the probate court of St. Louis county, Charles Gibson presented his final settlement as executor of the estate of Hamilton R. Gamble, deceased. The devisees and distributees filed twenty-one exceptions to the report which, by consent, were referred to a referee, upon the incoming of whose report a judgment was rendered from which the executor appealed to the circuit court where, under the statute, the whole matter was heard de novo before Edward T. Farish, another referee appointed for that purpose. Both parties, the executor and the exceptors, excepted to his report, but it was confirmed by the court, judgment rendered thereupon June 23, 1873, and from this judgment both parties appealed to the general term. The general term affirmed the judgment of the special term and the executor alone appealed to this court. He made no contest in this court upon the findings of fact of the referee; his bill of exceptions did not contain the evidence upon which the referee's findings were based but contained only the report which embraced his findings of fact and conclusions of law as to the exceptions to the executor's final account which were contested before him. The opinion of this court will be found reported in 59 Mo. 585.

In this state of the record this court had nothing before it but the conclusions of the referee upon the facts found by him. All of these conclusions were confirmed by this court, except his conclusion upon the facts found on the seventh exception. This exception sought to charge the executor with a loss which the estate had sustained from the unauthorized act of the executor in the year 1864, in converting certain funds of the estate which consisted of the national currency into gold. The referee found under this exception in favor of the exceptors in the sum of $6,613.30, with interest, making an aggregate finding against the executor under this exception, of $9,386.41. The referee having found, however, that the executor acted in good faith in this matter, and with reasonable discretion, this court held that the conclusion of law of the referee confirmed by the judgment of the circuit court that the executor was chargeable with this loss and with interest on the same, was erroneous, and for this error alone the judgment was reversed and the cause remanded. The usual mandate was sent down to the circuit court directing that court to proceed in conformity with the opinion of this court. Thereupon the executor moved the court to enter judgment in accordance with the report of the referee, except as to the seventh or gold exception; as to that, the seventh exception, to render a judgment for the executor upon the facts found and reported by the referee. This the circuit judge, after having taken the opinion of the judges in general term, declined to do and upon this ruling the executor took a bill of exceptions. The exceptors then moved that the whole case be again referred to a referee to retry the issues of fact and law, which motion the court denied and the exceptors excepted. The court then, against the objection of the executor, referred the cause to Edward T. Farish “to retry the matter contained in the seventh exception to his report heretofore filed herein.”

Farish declining to act, Nathaniel Holmes was appointed in his place and a supplementary order was made defining the scope of the inquiry before him, which did not materially change the previous order. Under this order the facts relating to the seventh exception were heard de novo before the referee, Holmes, and he rendered a report thereupon, finding “that the executor in these purchases of gold acted in good faith according to his best judgment for the interest of the estate,” and that his action in this respect “was a prudent and faithful discharge of his duty as executor and trustee, and cannot be considered as unauthorized or imputed as a fault or failure of duty;” and the referee accordingly found that the executor could not be held personally responsible for the loss which the estate had thus sustained. He found, however, that the loss which the estate had thus sustained was $6,094.08, instead of $6,613.30, as claimed by the executor and as found by Farish, the previous referee.

With some slight modification, the court now confirmed the report of Holmes and upon this report and the report of Farish, except so far as the latter report related to the seventh exception, it rendered judgment against the executor for a balance of $977.64 and charged against him the costs of the proceedings had since the reversal of the cause by this court in 1875. The exceptors and the executor both moved to set this judgment aside, the motions of both were overruled and both appealed to the court of appeals. That court in May, 1881, rendered a judgment reversing the judgment of the circuit court, holding that the cause after having been remanded by this court in 1875, should not have been referred for retrial upon the seventh exception, or upon any other exception, and that a judgment should have been entered by the circuit court upon the facts as found by referee Farish in his report of June 11th, 1872, and in accordance with the views of this court as to the law of the case as stated in the opinion remanding the cause. It, also, ordered that the cause be remanded with directions to the circuit court to enter a judgment in conformity with its judgment of June 23rd, 1873, except so far as modified by the decision of this court, which it held would be a judgment that the executor pay to the devisees and distributees when and as...