Julian v. Ward

• Decision Date: 31 October 1878
• Citation: 69 Mo. 153
• Parties: JULIAN, Appellant, v. WARD, Admr.
• Court: Missouri Supreme Court

69 Mo. 153

JULIAN, Appellant,

v.WARD, Admr.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Barton Circuit Court.--HON. J. D. PARKINSON, Judge.

Nathan Bray for appellant.

Buller & Chiswell and Robinson & Harkless for respondent.

NORTON, J.

It appears from the record that R. W. Crawford recovered judgment in the circuit court of Barton county, at the October term thereof, for the year 1860, against G. E. Ward, John M. Richardson, W. D. McFarlan and J. N. Bruffey, for the sum of $500 debt and $72 for his damages that the record of this judgment was destroyed by fire during the war; that G. E. Ward died, and that on the 17th day of February, 1867, Crawford commenced suit to restore his judgment against G. E. Ward's estate and against the other defendants. Service was had on the administratrix of Ward and on defendant Richardson. Richardson made default, and in the mean time E. G. Ward having been appointed administrator de bonis non of Ward's estate, in place of Theodosia A. Smith, a trial was had in the circuit court of Barton county at the April term, 1871, and the court found that a former judgment had been rendered in favor of plaintiff, and against defendant, the record of which was destroyed, and thereupon judgment in favor of the plaintiff and against defendant Richardson and E. G. Ward, administrator of G. E. Ward's estate, for the sum of $572 for his debt, and $590 damages was entered. After due notice of the presentation of said judgment for classification to the probate court, the same was, by the probate court, duly allowed and classified at the March term thereof, for the year 1873, and on the 10th day of said month. From the order of the probate court allowing said demand and classifying the same, the defendant, E. G. Ward, appealed to the circuit court.

In the circuit court the plaintiff offered the original papers in evidence to show a legal cause of action, and to show service on the administratix of Ward and her appearance to the suit, and to show that her letters had been revoked, and that E. G. Ward had been appointed administrator de bonis non of said estate, and to show service on him and his appearance to the action; also offered the judgment of the circuit court as certified to the probate court for allowance, and the notice of the presentation of the same to the probate court for classification, and the judgment and order of the probate court allowing said judgment as a legal demand and classifying the same. To this evidence defendant objected, for the reason that the judgment of the circuit court was void, because it had not jurisdiction either of the subject matter or of the person of Ward, the administrator. This objection was sustained, and thereupon the court rendered judgment for defendant, to reverse which action this appeal is prosecuted.

1. JURISDICTION OF BARTON COUNTY PROBATE COURT.

The only question which the record presents is, as to whether the circuit court of Barton county had jurisdiction to render the judgment offered in evidence at its April term, 1871. The solution of this question depends on a construction of the act establishing the probate court in Barton county, (Acts 1865-6, p. 84,) the 6th section of which provides that “said probate court shall have exclusive original jurisdiction * * to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand...