Gibson v. Vaughan

• Decision Date: 31 October 1875
• Citation: 61 Mo. 418
• Parties: JOSEPH K. GIBSON, Respondent, v. THOMAS H. VAUGHAN, ADMINISTRATOR, ETC., Appellant.
• Court: Missouri Supreme Court

61 Mo. 418

JOSEPH K. GIBSON, Respondent,

v.THOMAS H. VAUGHAN, ADMINISTRATOR, ETC., Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Christian County Circuit Court.

J. R. Vaughan, with Grover & Ellis, for Appellant.

I. In presenting a judgment for allowance against an estate, the same notice to the administrator is required as in the presentation of other demands, and if it be not given or waived, the allowance is illegal and void. (Bryan vs. Mundy, 14 Mo., 459; see also, Brooks vs. Duckworth, 59 Mo., 50.)

II. Where the original judgment has been destroyed, a copy supplied by the court in which it was rendered, should be filed in the probate court, showing the loss or destruction, and it should be treated as an ordinary claim. (Wagn. Stat., 102, § 8; Carondelet vs. Desnoyer, 27 Mo., 36.)Bray & Cravens, for Respondent.

I. Notice of the presentation of a judgment for classification is not necessary. (Wagn. Stat., 105, § 27; Carondelet vs. Desnoyer, 27 Mo., 36; Peters, Adm'r, vs. Holliday, Adm'r, 40 Mo., 544.)

II. The estate being insolvent, the respondent will lose his demand, unless the lien against the land and the proceeds arising from the sale thereof is enforced.

SHERWOOD, Judge, delivered the opinion of the court.

Gibson recovered judgment against Lawing in the Christian circuit court. After the rendition of the judgment, Lawing died and the circuit court records were destroyed by fire. On the records of the Christian probate court, there is an entry in a cause entitled as above, as follows: “Now at this day comes the plaintiff in this cause and files his petition, verified by affidavit, stating that in the lifetime of the defendant he obtained a judgment for the sum of one hundred and eighty-dollars and fifty-five cents, and that the same nor any part thereof has not been paid; and the court orders that the same be filed and classed in the fourth class of debts.” This entry is of the February term, 1866.

Under an order of the court the land of the deceased was sold for the payment of debts, not including that of the plaintiff. While the money arising from such sale was in the hands of the administrator, the plaintiff moved the court that the administrator pay over to him an amount sufficient to satisfy the judgment obtained, alleging that it had been allowed in the 4th class and was a lien on the land which had been sold by the administrator, and that the estate was insolvent. This motion prevailed and the administrator appealed to the circuit court, where the judgment again went in favor of the plaintiff. The chief ground of the resistance offered by the administrator to the motion was that he had never been notified of the presentation of the claim, nor did the record of the probate court show notice given to or waived by him. It was conceded at the trial that there was a judgment rendered in the circuit court in the lifetime of the deceased, in favor of plaintiff for the amount specified in the record of the probate court; that the judgment thus rendered was a lien on the real estate of the deceased at the time of his death, and that the records of the Christian circuit court, including that of the judgment mentioned, were destroyed by fire, prior to the entry in question being made in the probate records. And it was also conceded that there was no evidence of notice to the administrator or his waiver thereof to be found in such records or the files of that court, and that the estate of the...