Higgins v. Ransdall

• Decision Date: 31 January 1850
• Citation: 13 Mo. 205
• Parties: HIGGINS, ADM'R OF HIGGINS, v. RANSDALL.
• Court: Missouri Supreme Court

13 Mo. 205

HIGGINS, ADM'R OF HIGGINS,

v.RANSDALL.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO PETTIS CIRCUIT COURT.

The facts in this case, as they appear from the record, are that the defendant in error caused a notice to be served on the plaintiff in error, that he, Ransdall, would present to the County Court of Pettis county, on the 1st Monday in December, 1848, for allowance against the estate of Abraham Higgins, deceased, a note and an account, setting out a copy of the note and account in the notice. On the 1st Monday in December, upon the notice being filed in the County Court, the court continued the cause as to the note until the 1st Monday in February then next ensuing, and proceeded to try and determine the cause as to the account, and allowed the same against the estate. At the regular term of the County Court, on the 1st Monday in February, 1849, it being the 5th day of February, the court proceeded to try and determine the cause as to the note, and allowed it against the estate; and on that day adjourned until the next day, the 6th day of February; and on the 6th day of February, the court adjourned until the 1st Monday in March; on the first Monday in March, the court adjourned until the first Monday in April, and on the first Monday in April, the plaintiff filed an affidavit for an appeal, which was granted him, and the cause sent up to the Pettis Circuit Court. At the April term of the Pettis Circuit Court, the defendant in error appeared, and the cause was continued generally until the October term, and at the October term, the defendant in error filed two motions, one to dismiss the appeal as to the account, the other to dismiss the appeal as to the note. These motions were both sustained by the court, and the appeal was dismissed. To this opinion of the court, in sustaining these two motions, the plaintiff in error excepted, and filed his bill of exceptions. The cause is brought to this court by writ of error.

ENGLISH, for Plaintiff. 1. The within notice required (Rev. Code of 1845, p. 93, § 12), to be served upon an administrator, that a claim will be presented for allowance at the next term of the County Court, stands in the place of a summons; its object being to bring the administrator into court, and its service is the commencement of a suit against the administrator in the County Court. This notice must not be confounded with that provided for in § 5, p. 91, of Rev. Code, 1845. There are at least four other instances in which a notice is required to be served by our statute, and in which the notice stands unquestionably in the place of a summons, and its service is the commencement of a suit. These are: 1st. Notice of application to County Court for specific execution of a contract for the conveyance of real-estate. Rev. Code of 1845, p. 88, § 38. 2nd. Notice of application for assignment of dower in slave. Rev. Code of 1845, p. 433, § 18. 3rd. Notice of application for distribution of slaves. Rev. Code of 1845, p. 100, § 5. 4th. Notice of application for partition of land. Rev. Code of 1845, p. 766, § 5. This is expressly called a suit for partition in the act of January 25, 1847, Session acts, p. 106, and by this last act a party is permitted to institute the suit by summons. 2. That this notice, as it must also contain (Rev. Code of 1845, p. 93, § 12), a copy of the instrument of writing or account on which the claim is founded, and its object being to apprise the administrator of the nature of the claim to be presented, stands also in the place of a declaration. In this respect it is analogous to a writ of scire facias which stands as a declaration. Garner v. Hays, 3 Mo. R. 436. 3. As the written notice served on the administrator stands in the place of both a summons and a declaration, no matter how many different causes of action are set forth in the notice, they all constitute but one suit. The different causes of action may be considered so many several counts, as in the case of a petition in debt. Jones v. Cox et al., 7 Mo. R. 173. 4. The notice, served in this case, standing in the place of both a summons and a declaration, was then the commencement of a suit, and the note and account set forth in the notice constituted but one suit, it being but one suit for two different causes of action. 5. As there was but one suit, although the County Court decided as to the account at the December session of the court, the defendant in that court could not take an appeal, at that time, from the judgment of the court upon the account, as the whole suit was not disposed of, but the suit was still pending in that court. George v. Craig, 6 Mo. R. 648; State v. Pepper et al., 7 Mo. R. 348. 6. The County Court having disposed of the account, at the December session, and of the note at the ensuing February term, the suit was not disposed of so that the defendant could appeal, until the February term of the court. 7 The County Court possesses the power of adjourning from time to time; of adjourning to the following day, or to a subsequent day, to the next week or to the ensuing month, in continuation of the regular term (Rev. Code, 1845, p. 336, § 47), and the only limit to their power of adjournment is, that the adjourned session shall not interfere with a subsequent regular term of the court. Rev. Code, of 1845, p. 337, § 54.8. The regular term of the County Court having commenced on the first Monday in February and the court having on that day adjourned to the succeeding day, and on that day adjourned to the first Mon day in March, and on that day adjourned...