Hays v. Miller's Estate

Decision Date01 March 1915
Docket NumberNo. 1414.,1414.
PartiesHAYS v. MILLER'S ESTATE.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Suit by S. C. Hays against the estate of Cynthia E. Miller, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Rechow & Pufahl, of Bolivar, for appellant. L. Cunningham and B. J. Emerson, both of Bolivar, for respondent.

STURGIS, J.

This suit originated in the probate court of Polk county, Mo. Plaintiff there filed the following claim:

                            Demand Against Estate
                    The Estate of Syntha E. Miller, Deceased
                      To S. C. Hays, Dr
                 1900                            Dollars Cts
                       To board and nursing
                         from April, 1900, until
                         the 3 day of July, 1913
                         at $20 per year             260   00
                

To this is appended the affidavit of the claimant, in usual form, to the effect that he has given credit to the estate of Cynthia E. Hays, deceased, for all payments and offsets to which it is entitled. The defendant administrators appeared in the probate court and filed an answer and counterclaim founded on an account for labor performed by the deceased for plaintiff during the same period. A jury trial was then had in the probate court, resulting in a judgment for plaintiff. On appeal to the circuit court the cause came on for trial on the same pleadings and with the same result, and on the first witness being sworn the defendant objected to the introduction of any evidence for the reason the petition fails to state facts sufficient to constitute a cause of action. This is the first error assigned for our review.

It should be again noted that the method of challenging the sufficiency of pleadings by objecting to the introduction of evidence thereunder is not in favor with our courts. The pleadings should be settled before going to trial, and to this end any objection thereto should be presented by demurrer or proper motion in order that the court may rule on same, permit amendments to be made, etc., before the trial. Only such objections as are necessarily and absolutely fatal to the pleadings will be allowed in this way. Porter v. Railroad, 137 Mo. App. 293, 296, 117 S. W. 680; Wilson v. St. Joseph, 139 Mo. App. 557, 561, 123 S. W. 504; Patterson v. Traction Co., 178 Mo. App. 250, 256, 163 S. W. 955; Downs v. Andrews, 145 Mo. App. 173, 130 S. W. 472; State ex rel. v. Delaney, 122 Mo. App. 239, 99 S. W. 1; Haseltine v. Smith, 154 Mo. 404, 55 S. W. 633. Such an objection does not cover a case where a cause of action is only defectively stated, but the allegations must be construed most favorably to plaintiff and every fair inference drawn therefrom in plaintiff's favor. Wilson v. St. Joseph, supra. The petition is not subject to such an objection unless it would be fatally defective after verdict. Porter v. Railroad, supra; Wilkinson v. Misner, 158 Mo. App. 551, 555, 138 S. W. 931.

The prime object of a petition or statement is to inform the defendant of the nature of plaintiff's claim, that he may prepare to meet it, and that a judgment thereon will be a bar to any further suit on the same claim. The specific objection now made is that this statement does not show that the "board and nursing" charged for was the board and nursing of the deceased. We think, however, that this is the fair inference from the fact of claimant charging her estate therefor. As one person does not usually pay for the board of another and such would require a special contract, the natural inference is that a bill for the board and nursing against a person is for the board and nursing of such person. Besides this, the defendant filed an answer and counterclaim in the probate court, and the case was tried there without objection and possibly without discovery that the claim was not sufficient. This answer and counterclaim for services rendered by the deceased to plaintiff during the same period of time he was boarding and caring for her was an "express aider." McIntyre v. Insurance Co., 142 Mo. App. 256, 265, 126 S. W. 227. Such trial in the probate court must necessarily have disclosed the full nature of plaintiff's claim, and defendant could not have been kept in ignorance of same or been in any way prejudiced thereby. As stated in Christianson v. McDermott's Estate, 123 Mo. App. loc. cit. 455, 100 S. W. 65:

"It sufficiently appears that plaintiff's demand is for services rendered by plaintiff for the deceased for certain years, upon an implied obligation. The strict rules of pleading governing practice in the circuit courts are not required in cases originating in probate courts. All that is required is that the statement shall show the nature of the claim so that the administrator or executor may know what he has to defend against."

We have noted the many cases which diligence of defendant's counsel has collected, but space forbids our citing and distinguishing same; though we are not inclined to be as technical as courts have been at times. If we are to reverse cases for prejudicial error only, we must overrule this point.

Objection is also made that the verification of the claim states that just credit has been allowed the estate of Cynthia E. "Hays" instead of "Miller." The deceased was the sister of the claimant Hays, and her name of Miller was acquired by a previous marriage. It is evident that the writing of the name was a clerical error. While the verification is jurisdictional, we do not think this error destroyed this otherwise good verification. It is hardly necessary to invoke the rule that the court would presume a proper verbal verification. Waltemar v. Schnick's Estate, 102 Mo. App. 133, 76 S. W. 1053; Undertaking Co. v. Jones, 134 Mo. App. 101, 106, 114 S. W. 1049.

We think there was ample evidence to sustain the verdict rendered in the circuit court for $260, the amount asked. The defendant says that the amount asked is so small for the amount of services claimed as to discredit its good faith. This is explained, however, by the fact that the estate of the deceased is so small that a larger amount could not be paid. The evidence shows that deceased in 1900, then a widow and quite old, came to claimant, her brother, who was then living on a farm, and with tears asked for a home and place to live. She represented, and this is not disputed, that her sons, her only children, had refused her a home and virtually turned her out in the world with no place to go to. She was given a home and allowed to live with her brother, this claimant, until her death in 1913. During this time she was not only feeble...

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    • United States
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    ...W. 1992; Rawleigh v. Grigg (Mo. App.) 191 S. W. 1019; Spurlock v. Missouri Pacific Ry. Co., 93 Mo. 530, 8 S. W. 349; Hays v. Miller's Estate, 189 Mo. App. 72, 173 S. W. 1096; Kern v. United Railways Co. (Mo. App,) 250 S. W. The defendant challenges the sufficiency of the evidence to support......
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    ...in proceedings originating in the probate court [Liebaart v. Hoehle's Estate, Mo.App., 111 S.W.2d 925, 928-929; Hays v. Miller's Estate, 189 Mo.App. 72, 78, 173 S.W. 1096, 1097] and a formal pleading is not necessary in presentation of a claim in the probate court. In re Franz' Estate, Mo.,......
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