Green v. Strother

• Decision Date: 17 February 1919
• Docket Number: No. 13175.,13175.
• Citation: 201 Mo. App. 418,212 S.W. 399
• Parties: GREEN v. STROTHER.
• Court: Missouri Court of Appeals

212 S.W. 399

201 Mo. App. 418

GREEN v. STROTHER.

No. 13175.

Kansas City Court of Appeals. Missouri.

February 17, 1919.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Petition by Mamie Green against Samuel B. Strother, administrator of the estate of William Floyd Skinner, deceased, for the allowance and classification of the judgment against the estate of the decedent. From a judgment of the probate court for the administrator, petitioner appealed, and from a judgment of the circuit court against him, the administrator appeals. Reversed and remanded.

Calvin & Rea and Watson, Gage & Watson, all of Kansas City, for appellant.

John C. Nipp, of Kansas City, for respondent.

BLAND, J.

On April 30, 1913, plaintiff brought suit in the circuit court of Jackson county, Mo., against one described as John Skinner. Summons was issued directing the sheriff of said county to summon John Skinner. Service was duly had by a deputy sheriff, his return reciting that he had executed the writ in said county by delivering a copy of said writ and the petition in said cause to the "within-named defendant, John Skinner."

The petition in that case alleged that plaintiff received personal injury by reason of the negligence of the defendant in permitting a sidewalk to become out of repair in front of his premises located at 1123 Oak street, in Kansas City, Mo., and that by reason of said defective sidewalk plaintiff, while walking over the same, was caused to fall, to her injury, and asked judgment in the sum of $5,000. Defendant made default, and on March 18, 1914, the court rendered judgment in favor of plaintiff and against defendant, "John Skinner," in the sum of 81,000.

Some time prior to the 20th day of May, 1915, William Floyd Skinner died, and an administrator of his estate was appointed by the probate court of Jackson county, Mo. The inventory of the estate showed that at the time of his death deceased was the owner of said property located at 1123 Oak street. In May, 1915, plaintiff presented to the probate court of Jackson county a transcript of said judgment in her favor and against John Skinner, seeking to have the same classified as a judgment against the estate of William Floyd Skinner. No pleadings were filed in the probate court except said transcript of the judgment. The record shows that all parties appeared before the probate court, tried out the matter of classifying the judgment, and that the court refused to allow and classify the same.

Thereafter plaintiff appealed to the circuit court of Jackson county, Mo., where the case was tried by that court without the aid of a jury. No declaration of law or finding of fact was requested except one by the defendant to the effect that said judgment was not entitled to allowance or classification as a claim or judgment against the estate of William Floyd Skinner, which was refused by the court, and the court thereupon rendered judgment in favor of plaintiff and against the estate. After taking the proper steps, defendant has brought the case here.

In the court below plaintiff introduced evidence tending to prove that John Skinner and William Floyd Skinner were one and the same person, and that the suit of Mamie Green v. John Skinner was instituted and the summons served upon William Floyd Skinner, although he was designated in the petition and summons as John Skinner.

Defendant insists that his demurrer to the evidence should have been sustained, and in this connection states:

"The probate court is a court of limited jurisdiction, and has no jurisdiction which permits the classification of judgments rendered by other courts of record which require amendment and were not rendered by those courts in the ordinary course of proceedings."

We have no doubt but that the probate court had jurisdiction to classify this judgment against the estate of William Floyd Skinner, providing it was established that John Skinner and William Floyd Skinner were one and the same person. Whether there was evidence to show such fact will be hereinafter discussed, and we will assume, for the purpose of disposing of this point, that there was such evidence. It is stated in Parry v. Woodson, 33 Mo. 347, loc. cit. 348, (84 Am. Dec. 51):

"A name is a means of identity; but the change of the name or the application of a wrong name does not change the thing identified. It is not the name that is sued, but the person to whom it is applied. Process served on a man by a wrong name is as really served on him as if it had been served on him by his right name, and if in such ease he fail to appear, or, appearing, fail to object that he is sued by the wrong name, and judgment be rendered against him by such name, he is as much bound by the judgment as if it had been rendered against him by his right name. The use of the right name is every way preferable, since without it as a means of identification the evidence of the identity of the person sued may in process of time become lost; and hence the propriety of the amendment in this case; but so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name."

If one served with process in a wrong name desires to take advantage of the situation, he must appear and raise the question in the court where the suit is brought before judgment is rendered against him. Unless he does so, his right to object to his being sued in a wrong name is waived. Parry v. Woodson, supra; Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451.

The functions that the probate court may perform are conferred by the Constitution and statutes, and consequently, as the Constitution and statutes give no equity jurisdiction to the probate court, it may not proceed in equity cases. However, the statute (section 4056, R. S. 1909) confers jurisdiction upon the probate court "over all matters pertaining to probate business," and therefore it is held that the probate court has jurisdiction in matters pertaining to probate business where the issue can be settled at law and involves a simple matter, and that the probate court may even invoke equity principles in disposing of such business. Leitman's Estate v. Leitman, 149 Mo. 112, loc. cit. 117, 50 S. W. 307, 73 Am. St. Rep. 374; Gentry v. Gentry, 122 Mo. 202, loc. cit. 222, 26 B. W. 1090; Green v. Tittman, 124 Mo. 372, loc. cit. 379, 27 S. W. 391; State ex rel. v. Bird, 253 Mo. 569, 162 S. W. 119, Ann. Cas. 1915C, 353. The proceeding to classify a judgment against an estate, whether that judgment was actually rendered against the deceased during his lifetime under a wrong name or an alias name, is not one involving a complicated matter or a proceeding in equity, and we think there is no doubt but that the probate court has jurisdiction to determine the matter.

Section 197, R. S. 1909, provides that a judgment may be obtained against an estate in "some court of record, in the ordinary course of proceeding," and may thereafter be established in the probate court against such estate. Defendant says that the judgment in the case at bar, being obtained against the deceased in his wrong or alias name, was not "in the ordinary course of proceeding." This clause in the statute has no reference Whatever to a judgment procured as was this one. The statute simply provides that the claimant may elect to first go into a court of record and establish his claim against the estate there by the same kind of proceeding that he would pursue if the deceased had not died, but was sued while living. This is the meaning of the quoted language of the statute.

It is defendant's contention that the classification of a judgment was more or less ministerial on the part of the probate court, and that a proceeding to classify a judgment in that court does not contemplate a trial of fact such as is involved in a proceeding to show whether the party against whom and in whose name the judgment was actually rendered is the same as that of the deceased. There is no merit in this contention. The action of the probate court in classifying a judgment may involve a trial of fact, and it is not a mere ministerial, clerical, or nondescript act. McFaul v. Haley, 166 Mo. 56, loc. cit. 68, 65 S. W. 995. Of course, when a judgment is presented for allowance or classification, the probate court cannot go into the merits of the original cause of action upon which it was founded. It is held in McFaul v. Haley, supra, that whatever legal defense the law permits in a suit at law in the circuit court on the judgment an executor or administrator may make in the probate court when the judgment is presented for classification. It would be the duty a the probate court to satisfy itself in any case that a judgment presented to it for classification against an estate was actually rendered against the deceased in his lifetime. If a judgment against John Smith were presented to the probate court to be classified against the estate of John Smith, it would be necessary for the court to determine whether the two John Smiths were one and the same person, and this although, where there is an identity of name, identity of person is presumed. This presumption being rebuttable, if the administrator or executor desired to contest the matter as to the identity of the two John Smiths, he would have a right to do so, and we do not think that any one would question the jurisdiction of the probate court to try such an issue. We see no substantial difference between a situation of that kind and the one in the case at bar, although the names "John Skinner" and "William Floyd Skinner" are not idem sonans. The proceeding in the probate court to establish whether John Skinner and William Floyd Skinner are identical would not be substantially different from a...