King v. Ayres

• Decision Date: 29 March 1902
• Citation: 67 S.W. 1100,168 Mo. 250
• Parties: KING et al. v. AYRES.
• Court: Missouri Supreme Court

67 S.W. 1100

168 Mo. 250

KING et al. v. AYRES.

Supreme Court of Missouri, Division No. 1.

March 29, 1902.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge. Action by A. A. King and others against Thomas J. Ayres, receiver, etc. From a judgment for plaintiffs, defendant appeals. Reversed.

E. W. Major and J. D. Hostetter, for appellant. P. H. Cullen and I. C. Dempsey, for respondents.

VALLIANT, J.

This case is the same in all respects as the case of Ayres v. King (No. 10,075, just decided) 67 S. W. 558, except that the parties are reversed. The plaintiffs in this were the defendants in that, and the defendant here was the plaintiff there. The judgment was for the plaintiffs in this suit, that each was entitled to one-eighth of the land and the defendant to none, and an order of sale for partition was made, from which the defendant appeals. Since it appears from the record, as pointed out in the opinion in the first of these three cases, that there is a proceeding pending in the probate court looking to a sale of the lands of the estate for the payment of debts, that court should be left free to exercise its jurisdiction over that proceeding, without being embarrassed by the proceeding in this case. The learned trial judge who rendered the decree in this case appreciated that fact, as reference to a recital in his decree will show, but felt constrained to render the decree, because, as the recital shows, the question was not raised by either party. The judgment is therefore reversed, and the cause remanded to the circuit court, with directions to retain the cause, but suspend judgment until the administration is closed in the probate court, or until the court is satisfied that the land will not be needed to pay debts of the estate, and then proceed as the exigencies of the case may require. All concur.