In re Hukreda's Estate

• Decision Date: 07 June 1943
• Docket Number: No. 38443.,38443.
• Citation: In re Hukreda's Estate, 172 S.W.2d 824 (Mo. 1943)
• Parties: In re HUKREDA'S ESTATE. ST. LOUIS UNION TRUST CO. v. SEKETER.
• Court: Missouri Supreme Court

172 S.W.2d 824

In re HUKREDA'S ESTATE ST. LOUIS UNION TRUST CO. v.SEKETER.

No. 38443.

Supreme Court of Missouri, Division No. 2.

June 7, 1943.

Rehearing Denied July 6, 1943.

Error from St. Louis Circuit Court; James J. Nangle, Judge.

Proceeding in the matter of the estate of William Hukreda, deceased, wherein Nellie Collins Seketer filed a claim against the estate. To review a judgment of the Circuit Court of the City of St. Louis on appeal from probate court of St. Louis in favor of the claimant, the St. Louis Union Trust Company, executor, brings error.

Affirmed.

Clyde W. Wagner, of St. Louis, for plaintiff in error.

Charles E. Wells and Tibbits & Green, all of St. Louis, for defendant in error.

BARRETT, Commissioner.

By writ of error it is sought to review a judgment of the Circuit Court of the City of St. Louis in a cause appealed from the Probate Court of St. Louis.

Nellie Collins Seketer filed a demand against the estate of William Hukreda.The demand says: "Comes now Nellie Collins Seketer, and for her claim against the estate of William Hukreda, deceased, states that on or about November 4, 1932, deceased promised orally to leave claimant one-third (1/3) of whatever estate he, the said William Hukreda, should own at his death if claimant would devote her time to him until his death, acting as his housekeeper, secretary and companion, that claimant, accepting and relying upon said promise, entered upon her duties as companion, secretary and housekeeper for deceased upon said date, and so acted, from on or about November 4, 1932, until the death of the deceased on February 12, 1940."Then follows a long, detailed list of the services she performed and an allegation that the total value of the estate was $47,948.87.Then, the demand continues: "Claimant says that the services performed for deceased from on or about November 4, 1932, to February 12, 1940, a period of eighty-seven (87) months, and reasonably worth * * * ($15,982.95), the amount of the claim, no part of which has been paid.Wherefore, claimant prays that her claim may be allowed against said estate in the sum of * * * ($15,982.95)."

While the case was pending in the Probate Court the claim was amended in this: "from the amount stated therein of $15,982.95 to $16,116.29, as the one-third of the estate of $48,348.87 as shown by the inventory of the estate filed by the executor herein."

When the case was tried in the Circuit Court a jury assessed "claimant's damages at the sum of $15,982.95" which, together with $1,917.95 interest, gave her a total verdict of $17,900.90.The trial court ordered and the claimant accepted a remittitur of $9,200.90 and judgment was entered in her favor for $8,700.

It is urged against the judgment that the claimant's demand specifically states a cause of action for damages for breach of contract and for that reason neither the Probate Court nor the Circuit Court on appeal had jurisdiction of the case because her only choice of remedies was either a suit in equity against the heirs for specific performance or she could abandon the contract and sue the executor at law in quantum meruit for the reasonable value of her services.The argument is that the case was tried on the theory that this was an action for breach of contract and the assignment of errors and brief states that the whole record shows that claimant is not entitled to a judgment in her favor.

The difficulty with this position is that this case has been brought here by writ of error and there is nothing in the appellant's abstract of the record except the demand and its amendment, together with the verdict of the jury and the judgment.A motion for a new trial and in arrest of judgment is set out in the abstract of the record but there is no bill of exceptions and, of course, no way of knowing whether the facts stated in the various motions are meritorious or not and there is no way of determining whether on the whole record the claimant is entitled to recover or even the theory upon which the case was tried in the Circuit Court.If the appellant desired to challenge the legal effect of the evidence or any other matter of exception the entire record should have been preserved and brought forward.Mo.R.S.A. § 1194;Lewis v. Kansas City, 233 Mo.App. 341, 122 S.W.2d 852.The motion for a new trial must be contained in a bill of exceptions and the bill of exceptions must be made a part of the record, otherwise our review is, of necessity, limited to a consideration of the record proper.Blanchard v. Dorman, 236 Mo. 416, 139 S.W. 395;Spotts v. Spotts, 331 Mo. 917, 55 S.W. 2d 977, 87 A.L.R. 660."Plaintiff in error, by her failure to preserve, for our review, any matters of error, during the time the case was pending and while the trial was in progress in the circuit court, waived all matters except those that may appear upon the face of the record, rendering the judgment of the circuit court void."Dawson v. Scott, 330 Mo. 185, 189, 49 S.W.2d 87, 89.

In view of the record presented the only error we can possibly consider is whether the court had jurisdiction of this claim and whether it did turns on whether the claim, on its face, states sufficient facts to constitute a cause of action against the estate.Oakes v. Simrell, 98 Mo.App. 163, 71 S.W. 1060;Coleman v. Roberts, 214 Mo. 634, 114 S.W. 39.

It is not necessary for us to decide whether an action in assumpsit or quantum meruit is an action at law.But see Ames, The History of Assumpsit, in 3, Select Essays in Anglo-American Legal History, pp. 259, 275, 276, 278, 282;4 Am.Jur., pp. 494-497 and 7 C.J.S., Assumpsit, Action of, §§ 1-10.Neither is...