Hill v. Taylor

• Decision Date: 27 April 1903
• Citation: Hill v. Taylor, 99 Mo. App. 524, 74 S.W. 9 (Kan. App. 1903)
• Parties: WILLIAM E. HILL, Plaintiff in Error, v. A. S. TAYLOR, Administrator, et al., Defendant in Error
• Court: Kansas Court of Appeals

74 S.W. 9

99 Mo.App. 524

WILLIAM E. HILL, Plaintiff in Error, v. A. S. TAYLOR, Administrator, et al., Defendant in Error

Court of Appeals of Missouri, Kansas City

April 27, 1903

Error to Chariton Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Judgment affirmed.

L. N Dempsey and J. M. DeMoss for plaintiff in error.

(1) Appellant's contention is that the honorable circuit court erred in dismissing appellant's appeal from the judgment of the probate court. Secs. 146 and 150, R. S. 1899; Overton v. Johnston, 17 Mo. 449; Pattee v Thomas, 58 Mo. 173; Brown v. Woody, 22 Mo.App 258. (2) Was a motion for a new trial necessary in the case at bar? Wallace v. Underwood, 32 Mo.App. 478; Johnson to use v. Greve, 60 Mo.App. 170; O'Conner v. Koch, 56 Mo. 261.

Crawley & Son for defendant in error.

OPINION

BROADDUS, J.

This is a proceeding by plaintiff in error, a judgment creditor of the estate of James D. Staples, deceased, under the statutes to compel the defendant in error, as administrator of the estate of said Staples, to sell the real estate of the decedent, or so much thereof as may be necessary to satisfy plaintiff's lien of his judgment obtained during the lifetime of the deceased. The petition contains the following averments, viz.:

"First. That plaintiff had a just demand against the estate of the late James D. Staples, deceased, and that the same was, on the 27th day of February, A. D., 1894, classified by the probate court of said county, and assigned to the fourth class of demands.

"Second. That the personal estate of said decedent did not exceed the sum of four hundred dollars, and that the same was, by order of said probate court, duly of record, turned over to Mary L. Staples, widow of said decedent, as her absolute dower interest in the personal estate of her late husband, James D. Staples, deceased.

"Third. That said decedent died seized of the following described real estate, to-wit: The northeast quarter of the northwest quarter of section fourteen, and the southeast quarter of the southwest quarter of section eleven, all in township fifty-five, range eighteen, in Chariton county, Missouri, containing 80 acres, more or less.

"Fourth. That said decedent, during his lifetime, incumbered said real estate in the sum of $ 600, by a first mortgage lien to Chariton county, Missouri, for the use of the public schools, and that the same is still due and unpaid; that said mortgage lien and your petitioner's judgment lien, in the sum of two hundred and ninety-one dollars and seventy-eight cents, are the only unliquidated demands against said estate known to your petitioner.

"Fifth. That subsequently, to-wit: On the--day of , A. D., 1898, the said Mary L. Staples died, leaving the following-named minor heirs, to-wit: John Staples, aged thirteen years; Susie Staples, aged fifteen years; Henry Staples, aged seventeen years; and Louella Staples, aged nineteen years; and that said minor heirs continue to use and occupy said real estate as a homestead, and that the same is of the value of $ 1,600 or more.

"Sixth. That your petitioner's judgment lien against said real estate was obtained during the lifetime of said decedent, and before he acquired a homestead in same, as will more fully appear by reference to said decedent's deed to said real estate, dated May 4, A. D., 1883, and recorded in book--at page--in the recorder's office, in Keytesville, Chariton county, Missouri, and a transcript of your petitioner's judgment lien herewith filed.

"Seventh. That the said A. S. Taylor, defendant herein, the duly appointed and qualified administrator of said estate, refuses to complete the administration of same by taking necessary steps, under sections 146, 147 and section 118, of the Revised Statutes of 1899, to sell decedent's real estate, or so much thereof as may be necessary to satisfy your petitioner's judgment lien, contracted during the lifetime of decedent, as aforesaid."

The defendant administrator was duly notified of the proceeding and defendant, one of the children and heir at law of James D. Staples, deceased, appeared and filed answer. When the cause came to a hearing on the 14th day of September, 1901, in the probate court, the administrator made default; and the court on the hearing of defendant's objection dismissed the case. Plaintiff appealed to the circuit court where his petition was again dismissed upon the ground assigned by the court that as the probate court did not acquire jurisdiction of the proceedings, because the minor defendants were not notified thereof, the circuit court acquired none on the appeal.

Under section 146, Revised Statutes 1899, it is made the duty of an executor or administrator in case the...