In re Thomasson's Estate

• Decision Date: 11 March 1946
• Docket Number: No. 39631.,39631.
• Citation: 192 S.W.2d 867
• Parties: In re THOMASSON'S ESTATE. COIL et al. v. BOATMEN'S NAT. BANK OF ST. LOUIS.
• Court: Missouri Supreme Court

192 S.W.2d 867

In re THOMASSON'S ESTATE COIL et al. v. BOATMEN'S NAT. BANK OF ST. LOUIS.

No. 39631.

Supreme Court of Missouri, Division No. 2.

March 11, 1946.

Appeal from St. Louis Circuit Court, Division No. 3; William H. Killoren, Judge.

Proceeding in the matter of the estate of Hugh W. Thomasson, deceased, wherein Paul E. Coil, executor of the estate of P. H. Cullen, deceased, and Taylor R. Young sought to recover attorneys' fees from the Boatmen's National Bank of St. Louis, executor of the estate of Hugh W. Thomasson, deceased. From a judgment for the claimants for the attorneys' fees, the executor appeals.

Judgment affirmed.

Franklin E. Reagan, Lehmann & Allen and Leonard J. Holland, all of St. Louis, for appellant.

Clem F. Storckman and Cullen Coil, both of St. Louis, and James T. Blair, Jr., of Jefferson City, for respondents.

WESTHUES, Commissioner.

Appellant's brief contains an accurate statement of the facts necessary for a determination of the points on this appeal. The statement reads as follows:

"This proceeding was commenced in the Probate Court of the City of St. Louis, Missouri, on June 16, 1944, by motion of respondents for an order directing appellant, as executor of the Estate of Hugh W. Thomasson, to pay respondents, out of the funds of the estate, an attorneys' fee in the sum of $42,500.00, together with interest at the rate of 6% per annum from February 13, 1939, and costs.

"Respondents established their right to recover said attorneys' fee in the sum of $42,500.00 by judgment of the Circuit Court of the City of St. Louis on February 13, 1939, which judgment was affirmed by this court on April 5, 1943. In re Thomasson's Estate (Young et al. v. Boatmen's Nat. Bank of St. Louis), 350 Mo. 1157, 171 S.W. 2d 553.

"The principal amount of the judgment, together with interest at the rate of 6% per annum from April 5, 1943, the date of the judgment of this court in the case of Young et al. v. Boatmen's Nat. Bank of St. Louis (supra), is not in dispute and has been paid. The dispute is whether or not appellant is liable for interest on said judgment from February 13, 1939, the date the judgment was entered by the Circuit Court, to April 5, 1943, the date on which said judgment was affirmed by this court.

"Interest on the judgment for this period at the rate of 6% per annum amounts to $10,496.50. Respondents claim that they are entitled to interest for said period and appellant claims that they are not.

"The proceedings in the original action for attorneys' fees (Young et al. v. Boatmen's Nat. Bank of St. Louis, supra) were as follows:

"Respondents' petition for attorneys' fees was filed in and denied by the Probate Court of the City of St. Louis, Missouri. An appeal was taken to the Circuit Court of the City of St. Louis, Missouri, where respondents recovered a judgment against appellant in the sum of $42,500.00 and costs.

"The proceedings in the original case in the Circuit and Supreme Courts, stated in chronological order, were stipulated by the parties as follows.

"February 13, 1939, Judgment entered in Division 2 of the Circuit Court of the City of St. Louis in favor of claimants and against the Executor for Forty-two Thousand Five Hundred Dollars ($42,500.00).

"February 16, 1939. Executor filed its motion for new trial to set aside the judgment and decree entered February 13, 1939.

"March 8, 1939. Executor filed in Division 1 of the Circuit Court its motion to amend the record made in Division 1, in cause No. 22514-C wherein it requested that the record be amended to show the filing of the stipulation to transfer the case to an equity division and further that the minute entry be amended nunc pro tunc by striking out the words `jury waived.'

"April 6, 1939. In Division 1, the motion to amend the record nunc pro tunc was sustained. The record was amended to read, `Stipulation of parties relative to transfer of cause to equity division filed, thereupon, it is ordered by this Court that this cause be assigned to Division No. 3,' and the minute entry was amended to read `Stipulation filed, cause assigned to Division No. 3.'

"April 11, 1939. In Division 1, claimants filed their motion for new trial as follows:

"`Comes now the plaintiffs P. H. Cullen and Taylor R. Young and move the Court to set aside its order made April 6, 1939, sustaining defendant's motion to amend the record and to grant them a new trial for the following reasons:

"`First: Because the order and judgment of the Court is without support in the evidence.

"`Second: Because the order and judgment of the Court are against the weight of the credible evidence.

"`Third: Because the order and judgment of the Court are contrary to the law.

"`Fourth: Because the Court was without jurisdiction to make the order.

"`And of the matters herein plaintiffs pray the judgment of the Court.'

"April 18, 1939. In Division 1, claimants' motion for a new trial was overruled.

"April 24, 1939. In Division 2, motion of Boatmen's National Bank, Executor of the Estate of Hugh W. Thomasson, for a new trial was overruled.

"May 25, 1939. In Division 2, the Executor was allowed an appeal to the Supreme Court.

"June 2, 1939. In Division 1, claimants were allowed an appeal to the Supreme Court of Missouri from order of April 6, 1939, sustaining defendants' motion to amend the record and from order overruling claimants' motion for a new trial thereon.

"July 30, 1940. Defendant's Bill of Exceptions settled, allowed, approved, signed, sealed and filed, and ordered made a part of the record in the cause in Division No. 2.

"October 4, 1940. Claimants' appeal from order sustaining defendant's motion to amend the record was dismissed in the Supreme Court for failure to prosecute.

"March 12, 1941. Opinion of Commissioner Bohling filed in Division 2 reversing claimants' judgment. Subsequently claimants' motions for rehearing and to transfer to Court en banc were overruled and the case was transferred to the Court en banc on the court's own motion.

"September 17, 1941. Cause argued and submitted to Court en banc.

"September 25, 1941. Judgment rendered by Court en banc adopting the opinion of Division 2 reversing the judgment. Subsequently claimants filed en banc a motion for rehearing which was granted and the case was again argued en banc.

"April 5, 1943. Opinion filed by the Court en banc affirming the judgment of the Circuit Court. Subsequently the Executor's motion for a rehearing was overruled and in due course the mandate of the Supreme Court en banc was filed in the Circuit Court, Division 2, affirming the judgment. The judgment of the Circuit Court was then certified to the Probate Court.

"Claimants through their attorneys thereupon made a demand upon the Executor for payment and were informed then by its attorneys that no expense of administration or demands or claims would be paid until pending suits to Quiet Title to the deceased's real estate were finally determined. When these suits were concluded, during May, 1944, claimants again requested payment of the judgment and at that time were informed that the Executor was ready to pay the principal of the judgment but was only willing to pay interest from April 5, 1943.

"On November 7, 1939, P. H. Cullen died and his Executor was substituted in his place and stead in the appeal then pending in the Supreme Court so that the judgment creditors at the present time are Paul E. Coil, Executor of the Estate of P. H. Cullen, Deceased, and Taylor R. Young.

"The proceedings in this case (as distinguished from the original case) were as follows:

"Respondents' motion for an order directing appellant, as executor, to pay the judgment for attorneys' fees in the sum of $42,500.00, together with interest at the rate of 6% per annum from February 13, 1939, and costs, was filed in the Probate Court on June 12, 1944, and sustained July 22, 1944.

"Appellant filed an affidavit for appeal from the order of the Probate Court of July 22, 1944, sustaining respondents' motion and an appeal was allowed to the Circuit Court of the City of St. Louis, Missouri, on July 28, 1944.

"The cause was assigned to Division No. 3 of said Circuit Court and was heard and submitted on October 13, 1944.

"Division No. 3 of said Circuit Court entered its order sustaining respondents' motion on June 4, 1945.

"Appellant filed a motion for new trial on June 8, 1945, which was overruled by court on June 11, 1945, and an appeal was taken to this court."

In appellant's argument it is stated that its contentions in this case are threefold, namely:

"I. Appellant is not liable for interest on the judgment prior to April 5, 1943, the date on which this Court, en banc, reversed the judgment of Division No. 2, and the original judgment of this court, en banc, and affirmed the judgment of the Circuit Court.

"II. Appellant is not liable for interest on the judgment from March 12, 1941, to April 5, 1943, the period that the judgment of the Circuit Court stood reversed in this court.

"III. Appellant is not liable for interest on the judgment prior to October 4, 1939, while respondents' appeal was pending in this court."

We will dispose of appellant's last contention first. It may be conceded that a judgment creditor, who appeals from a judgment he deems inadequate and which judgment is affirmed on appeal, is not entitled to interest on the judgment pending the appeal. State ex rel. Southern Real Estate & Financial Co. v. City of St. Louis, 234 Mo.App. 209, 115 S.W.2d 513 loc. cit. 515 (2, 3). The ruling is based on the theory that the plaintiff, through his own actions, delays the time when the judgment may be satisfied. But in this case the claimants, respondents here, did not appeal from the judgment. The record, as stated by appellant, shows that the order from which respondents appealed concerned a nunc pro tunc proceeding. Respondents at all times were insisting on the payment of the judgment. That is all that...