In re Jacobs' Estate
| Decision Date | 26 June 1945 |
| Citation | 188 S.W.2d 956,238 Mo.App. 833 |
| Parties | In the Matter of the Estate of Anna E. Jacobs, Deceased, J. Walter Schultz, Administrator, Respondent, v. Fred C. Zeitinger, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Wayne County; Hon. Edward T Eversole, Judge.
Affirmed.
F D. Chilcott for appellant.
The court erred in overruling defendant's motion to quash the return of the sheriff of Wayne County to the order of attachment of the body of the defendant for the reason that The probate court of Wayne county had never acquired jurisdiction of the person of the defendant by the issuance of its citation of January 8, 1943. Sec. 5, page 3, R. S. Mo. 1939; State ex rel. Minihan v. Aronson, 165 S.W.2d 404, 350 Mo. 309; State ex rel. Gardner et al. v. Hall, 221 S.W. 708, 282 Mo. 425; State ex rel. Carter v. Hall, 125 S.W. 559. The sheriff of Wayne county had no authority to execute the order of attachment of the body of the defendant in the City of St. Louis, Missouri. State ex rel. Finch v. Duncan, 193 S.W. 950. The court erred in overruling the motion of the defendant to quash the appeal and strike the cause from the docket on the grounds that the circuit court never acquired jurisdiction of the person of the defendant, because -- the probate court never acquired jurisdiction of the person of the defendant by his consent to appear in the probate court while he was being held in duress by the sheriff of Wayne county. The jurisdiction of the circuit court on appeal is derivative, and if the probate court never acquired jurisdiction in a proper manner the circuit court acquired none. Nations v. New York Times, 57 S.W.2d 713; Byler v. Jones, 79 Mo. 261. The court erred in reading and giving to the jury, over the objection and exception of defendant, instruction No. 1 offered on behalf of the plaintiff. Yancey v. Central Mutual Ins. Assn., 77 S.W.2d 149; Rothe v. Hull, 180 S.W.2d 7; Lee v. Shryacker-Wright Grocery Company, 53 S.W.2d 406; Christner v. Chicago, R. I. & P. Ry. Co., 64 S.W.2d 752; In re Weingart's Estate, 170 S.W.2d 912. The court erred in reading and giving to the jury Instruction No. 2 offered on behalf of the plaintiff for the reason that it placed too great a burden of proof on the defendant. Seago v. New York Central Railroad Company, 164 S.W.2d 336; Krause v. Spurgeon, 256 S.W. 1072. The verdict of the jury is against the law. Secs. 63-67, page 15, R. S. Mo. 1939. The verdict is against the evidence under the law. The verdict is against the evidence and the greater weight of the evidence.
Wm. T. Powers for respondent.
The court properly overruled defendant's motions to quash the return of the sheriff and to quash the appeal and strike from the docket, because the court had jurisdiction both of the subject-matter and the person of defendant. The probate court has exclusive jurisdiction in proceedings to discover assets and recover them, where the estate is pending. Secs. 63-67, R. S. Mo. 1939; State ex rel. Nute v. Bruce, Judge, 70 S.W.2d 854, l. c. 857, 334 Mo. 1107; State ex rel. Lamm et al. v. Lamm et al., 216 S.W. 332, l. c. 333 (2, 3, 4). The proceeding is a summary and quick way of securing assets being wrongfully withheld. In Re Clinton's Estate, 223 Mo. 371, l. c. 5, 123 S.W. 1. The probate court is a court of record. Sec. 2436, R. S. Mo. 1939; Memel v. Thomas, 181 S.W.2d 168. The probate court for disobedience to an order made in pursuance to Articles 1 to 13, inclusive, Chapter 1, Revised Statutes of Missouri 1939, may issue process to any county and cause same to be served therein. Sec. 282, R. S. 1939. Incidental authority accompanies a grant of power to the court and the probate court may borrow from the code. Eckerle v. Wood, 95 Mo.App. 378; In Re Clinton's Estate, 223 Mo. 371, 123 S.W. 1. Courts of record have inherent power and statutory power to punish for contempt on disobedience to court orders. Sec. 2028, R. S. Mo. 1939; State ex rel. Gentry et al. v. Becker et al., 174 S.W.2d 181. The orders and judgments of probate courts are entitled to the same presumption as circuit courts. Thomason v. Pennell, 199 S.W. 1011. The interrogatories filed and answers thereto are the pleadings in a procedure under Secs. 63-67, R. S. 1939, to recover assets. State ex rel. Lamm v. Lamm, 216 S.W. 332. The probate court had jurisdiction of the person of defendant. The appellant waived the jurisdiction of the court over his person. The court had jurisdiction of the subject-matter. The Wayne county probate court was the only court having jurisdiction of the subject-matter. Jurisdiction of the subject-matter means lawful authority "over that class of cases." Eckerle v. Wood, 95 Mo.App. 378. While jurisdiction of the court over the subject-matter is governed by law and cannot be waived; jurisdiction over the person may be waived by appearance to the cause. The defendant by appearing twice after the citation and attachment were disposed of by the court, and taking two continuances and filing answer to the interrogatories in effect a general denial, waived jurisdiction of the court over his person. State ex rel. Newell v. Cave, Judge, 199 S.W. 1014, and cases cited, l. c. 1016; Joe Dan Market v. Wentz, 13 S.W.2d 641; Cudahy Packing Co. v. Chicago N.W. Ry. Co., 230 S.W. 82. Instruction No. 1 correctly declared the law and submitted the only issue in the case. Instructions given at the request of parties must be read together. Ritchie v. Board of Agriculture, 297 S.W. 435; Klines v. Jamison, 277 S.W. 969. Instruction No. 2 did not place too great a burden on defendant. In action to discover assets of estate under procedure at bar, where prima facie case is made against defendant claiming property alleged to belong to estate, burden is on defendant to establish his ownership by proof which is clear, full, unequivocal and convincing to the judicial mind. In Re Martin's Estate, 266 S.W. 750, l. c. 751. The phrase "to your satisfaction" has often been before the courts, but in no case has such phrase, standing alone, been held to constitute reversible error. Seago v. New York Central R. R. Co., 164 S.W.2d 336, l. c. 340. The jury passed on the facts. The jury are the judges of the weight of the evidence. Their verdict on the facts will be disturbed by the appellate courts. The courts have held that where specific personal property have been sold and proceeds deposited in the bank account of the seller, the summary proceedings to discover assets is a proper remedy to compel him to pay the amount of the proceeds to the estate, and that this remedy is not "confined to a particular fund -- the actual money which belonged to the decedent." Lolordo v. Lacy, 88 S.W.2d 353, l. c. 360-61.
This was a proceeding in the Probate Court of Wayne County, Missouri, by the administrator of the estate of Anna E. Jacobs, deceased (respondent here), against Fred (or Ferd) C. Zeitinger (appellant) to recover assets of the estate of said Anna E. Jacobs, alleged to have been wrongfully withheld by appellant. A trial in the probate court resulted in a verdict, by four jurors out of six, and in a judgment, for appellant, and respondent appealed to the Circuit Court of Wayne County, where a jury rendered a unanimous verdict for respondent, and found that appellant was guilty of wrongfully withholding the sum of $ 608.97 from the estate of Anna E. Jacobs, deceased. After unsuccessful motion for a new trial, appellant took an appeal to this court, and the case is thus before us.
J. Walter Schultz was the administrator. He was a brother of Anna E. Jacobs, deceased. She died November 20, 1941. Mrs. Jacobs had been in the hospital, possibly several times, and had been utterly unable to manage her various interests. For at least five years prior to her death, Mrs. Jacobs has thus been physically disabled, and appellant claimed that he had a settlement with Mrs. Jacobs prior to her death, and, at that time, she paid him the sum of $ 608.97, as a commission or compensation for what he had done for her for many years. There were other sums involved, but the item of $ 608.97 was the only amount in dispute at the time the case was tried.
On January 8, 1943, Schultz, as administrator, instituted a proceeding in the Probate Court of Wayne County to compel appellant to pay to him, as such administrator, money he claimed belonged to the estate of Anna E. Jacobs, deceased. Though served with a summons by the Sheriff of the City of St. Louis, appellant did not appear in the Probate Court of Wayne County on January 25, 1943, the day he was cited to appear there, and on that date, or soon thereafter, the Probate Court of Wayne County issued its order of attachment to Elmer Chatman, Sheriff of Wayne County, and he seized appellant under said writ in the City of St. Louis on the night of January 28-29, 1943, and later brought him before the Probate Court of Wayne County. As before stated, on the trial in the probate court of such county, appellant obtained a judgment, and on appeal therefrom, respondent had a judgment against appellant.
Appllant makes seven assignments of error in his brief. It may not be necessary to consider all of such assignments. Of these in their order, so far as we deem necessary. Appellant claims here that the Probate Court of Wayne County never acquired jurisdiction of the person of appellant by the issuance and service of its citation of January 8, 1943, and that the Sheriff of Wayne County had no authority to execute the order of the probate court of that county by attaching the body of appellant in the City of St. Louis. It is not necessary to consider whether or not appellant waived the question of jurisdiction, as we...
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Zeitinger v. Drewes
...Walter Schultz, a defendant here, was plaintiff, and Fred C. Zeitinger, defendant here, was plaintiff. In re Jacobs Estate; Schultz v. Zeitinger, 188 S.W.2d 956. (2) The Probate Court of Wayne County had jurisdiction of matter in which plaintiff was served with an attachment, and the holdin......