Johnson v. Hiller

• Decision Date: 08 November 1927
• Docket Number: No. 20032.,20032.
• Citation: 299 S.W. 135
• Parties: JOHNSON v. HILLER et al.
• Court: Missouri Court of Appeals

299 S.W. 135

JOHNSON v. HILLER et al.

No. 20032.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Rehearing Denied November 22, 1927.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Proceedings for the settlement of the account of George W. Fleming, public administrator in charge of the partnership estate of Johnson & Johnson. Exceptions filed by Andrew L. Johnson were overruled, and he appealed to the circuit court. The death of George W. Fleming was suggested, and, on motion of Andrew L. Johnson, Sam S. Hiller, administrator of the estate of George W. Fleming and others were substituted as parties defendant. Order sustaining motion of substituted defendants for dismissal, and Andrew L. Johnson appeals. Affirmed.

See, also, 295 S. W. 132.

Andrew L. Johnston, of Kahoka, for appellant.

Charles Hiller and T. L. Montgomery, both of Kahoka, for respondents.

BECKER, J.

Andrew L. Johnson filed exceptions in the probate court of Clark county, Mo., to the sixth and supplemental settlement of George W. Fleming, public administrator in charge of the partnership estate of Johnson & Johnson. Each exception was overruled, and thereupon an appeal was taken by the said Andrew L. Johnson to the circuit court of Clark county. On September 3, 1925, after said appeal had been taken to the circuit court, said George W. Fleming, public administrator in charge of the partnership estate of Johnson & Johnson, died, and on October 6, 1925, Sam S. Hiller was duly appointed and qualified and entered upon the discharge of his duties as the administrator of the personal estate of the said George W. Fleming, deceased.

Said Andrew L. Johnson, on December 18, 1925, suggested the death of George W. Fleming, and on August 6, 1926, filed a motion in the circuit court for "permission to make Sam S. Hiller, who is administrator of the estate of the late George W. Fleming, and Sam S. Hiller and S. S. Ball, who are the bondsmen of the late George W. Fleming, defendants in the above-stated action." The record discloses that, though on the following day said motion was by the court sustained, no summons was issued against either Sam S. Hiller in his representative capacity or individually, nor against S. S. Ball, as is required under section 1348, Revised Statutes of Missouri, 1919. Thereafter, on December 7, 1926, Sam S. Hiller, administrator of the estate of George W. Fleming, deceased, Sam S. Hiller and S. S. Ball (entering their appearance for the sole purpose of the motion) filed their motion to dismiss said appeal pending in said circuit court, because no writ of scire facias had...