Joyce v. Central Sur. & Ins. Corp.

• Decision Date: 12 January 1959
• Docket Number: Nos. 22837,22838,s. 22837
• Citation: 321 S.W.2d 272
• Court: Missouri Court of Appeals
• Parties: Lynn JOYCE, Appellant, v. CENTRAL SURETY & INSURANCE CORPORATION, Respondent. E. W. WHITE, Appellant, v. CENTRAL SURETY & INSURANCE CORPORATION, Respondent.

Page 272

321 S.W.2d 272

Lynn JOYCE, Appellant, v. CENTRAL SURETY & INSURANCE CORPORATION, Respondent.

E. W. WHITE, Appellant, v. CENTRAL SURETY & INSURANCE CORPORATION, Respondent.

Nos. 22837, 22838.

Kansas City Court of Appeals, Missouri.

Jan. 12, 1959.

Gibson Langsdale, Kansas City, for appellants.

Melvin J. Spencer, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

The above appeals were consolidated by order of this court. Plaintiffs' petitions pray for declaratory judgments determining the rights, status and obligations of defendant insurance company under a policy of liability insurance issued by it to one Oscar Rieger. These petitions further specifically pray that defendant company be ordered to pay to plaintiff Lynn Joyce the sum of $250, and to plaintiff E. W. White the sum of $950, together with costs and interest thereon since October 17, 1955, upon which date plaintiffs allege they secured separate judgments for like amounts against the said Oscar Rieger, defendant company's insured. Some evidence was heard and considered on uncontroverted facts. The trial court then sustained defendant's motion to dismiss as to each case. Appeals have been duly perfected.

There is no dispute as to the facts in these cases. On October 17, 1955, judgments for damages were rendered by the magistrate court of Jackson County in favor of plaintiff Joyce for $250 and in favor of plaintiff White for $950, in their respective cases filed against Oscar Rieger and growing out of the same automobile accident. It is conceded that at the time Oscar Rieger carried liability coverage with defendant company, and that its attorney represented him before the magistrate court. On October 21, 1955, four days after the date of these judgments, Oscar Rieger died. On October 25, 1955, Melvin J. Spencer, as attorney for Oscar Rieger, and who was then and is now attorney for defendant company, filed 'Notice of Appeal' and appeal bond in each case. On October 26, 1955, Oscar Rieger's widow, Alice M. Rieger, was appointed executrix of his estate and made first publication of her letters testamentary on November 2, 1955.

Thereafter and on December 15, 1955, plaintiffs filed in the Circuit Court of Jackson County their motions to dismiss these appeals from the magistrate court on the ground that same were filed four days after defendant's death and prior to the appointment of the executrix, and for the further reason that the executrix had not filed notices of appeal within the time provided by law for such appeals. On December 22, 1955, Rieger's erstwhile attorney Spencer and counsel for the executrix joined in filing motions to substitute the executrix as party defendant in the place and stead of Oscar Rieger. The circuit court denied both motions to dismiss the appeals and sustained the motions to substitute the executrix as party defendant.

Shortly thereafter this litigation reached the appellate courts for the first time. In State ex rel. White v. Terte, Mo.App., 293 S.W.2d 6, 12, this court granted a permanent writ of prohibition, holding that the circuit court '* * * should undertake no further exercise of jurisdiction * * * except to dismiss the appeals and to return the transcript to the Magistrate'. In State ex rel. White v. Terte, Mo., 303 S.W.2d 123, our Supreme Court reached the same conclusion. It might be well to note here that these facts determining the rights of the parties arose prior to January 1, 1956, the effective date of Missouri's new Probate Code. ¹ While these appellate proceedings in prohibition were pending (the Supreme Court decision was handed down June 10, 1957) no further action was taken in the magistrate court. No claim, demand, notice or proceeding of any kind was ever filed in the probate court, by either plaintiff, during the year following appointment of the executrix and soon thereafter the estate of Oscar Rieger was closed and the executrix finally discharged by the probate court of Jackson County.

We shall examine the two appellate decisions which are already in effect herein. We do so for two reasons: First, to complete the factual-legal picture and, Second, to assemble the legal guidance, reasoning and conclusions therein found. In the same category should be included the solid opinion of Bennick, C., St. Louis Court of Appeals in Newman v. Weinstein, 230 Mo.App. 794, 75 S.W.2d 871, which opinion received the avuncular blessing and approval of the Supreme Court in the instant prohibition opinion. Such examination discloses these conclusions: First. Proceedings in the circuit court on appeal from magistrate or justice courts are governed by special statutes. Second. The Circuit Court's jurisdiction on magistrate appeals is derivative and is measured by the jurisdiction theretofore possessed by the justice (magistrate). See Newman v. Weinstein, supra. Third. (a) Section 517.890, V.A.M.S. provides that if a defendant die after final judgment against him a transcript of the judgment shall be exhibited to the probate court; (b) Section 517.450 provides that in case a sole defendant against whom suit is pending in magistrate court dies, the magistrate shall immediately certify the case to the probate court; (c) The Supreme Court opinion specifically approved the Newman-Weinstein holding that the statute granting concurrent jurisdiction of the circuit court with that of the probate court in establishing claims against an estate had no application to cases appealed to that court from the justice court (now magistrate court).

So, the over all result is that under all possible contingencies (if the magistrate's judgments were treated as final when entered or became final ten days thereafter since no valid appeal was taken or if the appeal be treated as valid), the circuit court was without jurisdiction and should return the cases to the magistrate court, and the magistrate court could proceed no further except either to certify the case to the probate court or exhibit a transcript of judgment to the probate court.

Section 482.100, V.A.M.S. provides that no magistrate shall have jurisdiction to hear or try any action against an executor or administrator. (Italics supplied). Section 464.020, V.A.M.S., the special statute of limitations or so-called no-claim statute in effect at the time of Rieger's death, provided in part: 'All demands not thus exhibited in one year shall be forever barred, * * * and said one year shall begin to run from the date of the granting of the first letters on the estate where notice shall be published, the first insertion within ten days after letters are granted; * * *'.

If the judgments entered in the magistrate court on October 17, 1955, were final judgments on that date, or became final when Rieger died four days later on October 21, 1955, and before expiration of the ten day appeal period, then, nevertheless, the same are unenforceable against Rieger because he is dead, and are legally unenforceable against his estate because barred under the non-claim statute since such judgments were not filed in the probate court during the one year limitation therein prescribed. If these judgment entries were not final, then plaintiffs' claims against Rieger were neither established against him or against his estate and are not enforceable.

Defendant's liability insurance policy which was in full force and effect contained, among others, the following provisions:

"No action shall lie against the company * * * until the amount of the Insured's obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.

"Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy * * *".

Plaintiffs contend in the present actions that under these facts and under the above policy provisions defendant insurer is liable in a direct action brought against it for the amounts of these magistrate judgments even though such judgments are not enforceable against the insured or against his estate. Plaintiffs urge two theories which they say lead to such results: The first is that the actions of the executrix in moving to be substituted as party defendant and the orders of the circuit judge so substituting her constituted legal exhibition of plaintiffs' judgments as demands against Rieger's estate as required by Sections 507.100 and 464.040, RSMo 1949, and further constituted waiver of notice under Section 464.190, RSMo 1949. Section 507.100 is the general statutory provision for substitution of the proper party in case the original party dies. As pointed out hereinabove this section will not prevail over the special provisions governing proceedings in the magistrate courts. Section 464.190, which has since been repealed, merely provides that the executor may by appearing in court or by writing, waive the service of notice of demand. Plaintiffs' position under this theory is vulnerable from at least four aspects. First. Under Chapter 464, V.A.M.S., waiver of notice alone was insufficient to establish a claim against an estate inasmuch as Section 464.040 required in addition that the demand be exhibited and presented to the probate court. Second. The order of the circuit court was ineffective in substituting the executor since on appeal it was determined by the Supreme Court that the circuit court was wholly without jurisdiction. Third. The Supreme Court opinion in State ex rel. White v. Terte, supra, 303 S.W.2d at page 124 holds: 'The proper forum in which to settle any claim based on the judgments in question against the deceased was the probate court'. Fourth. The statutory requirements for establishment of claims against the estates of decedents are to be...