King v. Stotts' Estate

• Decision Date: 06 December 1913
• Citation: 162 S.W. 246,254 Mo. 198
• Parties: KING v. STOTTS' ESTATE.
• Court: Missouri Supreme Court

162 S.W. 246

254 Mo. 198

KING v. STOTTS' ESTATE.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

Rehearing Denied January 3, 1914.

1. COURTS (§ 231)—JURISDICTION—CONSTITUTIONAL QUESTIONS.

Where constitutional questions are properly and timely raised in the trial court, an appeal lies to the Supreme Court, though the amount is within the jurisdiction of the Court of Appeals, and it is immaterial whether the constitutional questions are well taken, unless the questions have been determined by the Supreme Court.

2. EXECUTORS AND ADMINISTRATORS (§ 239)— ALLOWANCE OF CLAIMS—JURISDICTION—APPEAL.

Where the probate court rendered a default judgment, allowing a claim against a decedent's

estate, and then, on the petition of heirs, vacated the allowance, and then, after hearing, rendered judgment for the claimant in a less sum and the claimant appealed to the circuit court from the action of the probate court in vacating the allowance and in rendering judgment granting inadequate relief, the circuit court acquired jurisdiction of the whole controversy.

3. APPEAL AND ERROR (§ 882)—QUESTIONS REVIEWABLE—MANNER OF TRIAL IN TRIAL COURT—ESTOPPEL.

A party largely responsible for the manner of the trial of his cause in the court below is estopped from urging error on appeal in the matter of procedure in the trial.

4. EXECUTORS AND ADMINISTRATORS (§ 238)— ALLOWANCE OF CLAIMS — AFFIDAVIT BY HEIRS—JURISDICTION.

An affidavit which follows Rev. St. 1909, § 220, authorizing the filing in the probate court of an affidavit stating that affiant has good reason to believe and believes that a demand against a decedent's estate has been improperly allowed and will furnish satisfactory evidence of the fact, and asking for a vacation of the allowance of the claim and a trial anew, is sufficient, and the probate court has jurisdiction to hear and determine whether the judgment of allowance should be set aside and, if set aside, to determine on a hearing whether the claim should be allowed at all.

5. EXECUTORS AND ADMINISTRATORS (§ 238)— ALLOWANCE OF CLAIMS—VACATION OF ALLOWANCE —REMEDIES.

The remedy for the vacation of an allowance against a decedent's estate, given by Rev. St. 1909, § 220, is not an exclusive remedy, but the remedy in equity remains where there are facts and equitable relief.

6. CONSTITUTIONAL LAW (§§ 249, 315)—EXECUTORS AND ADMINISTRATORS (§ 238)— DUE PROCESS OF LAW—EQUAL PROTECTION OF THE LAW—STATUTES—VALIDITY.

Rev. St. 1909, § 220, authorizing the probate court to vacate an allowance against a decedent's estate and try the matter anew on the filing of an affidavit within four months of the allowance, stating that the affiant has good reason to believe and does believe that the demand has been improperly allowed, does not deny to a claimant, obtaining a default judgment allowing his claim against a decedent's estate, the equal protection of the laws or due process of law, though the term of the probate court may expire before the filing of the application to vacate the judgment.

7. JURY (§ 16)—RIGHT TO TRIAL BY JURY— VACATION OF DEFAULT JUDGMENT ALLOWING CLAIMS AGAINST DECEDENT—DISCRETION OF COURT.

An application, under Rev. St. 1909, § 220, to vacate a default judgment allowing a claim against a decedent's estate is addressed to the discretion of the court, and the claimant is not entitled to a jury trial on the question.

8. EXECUTORS AND ADMINISTRATORS (§ 239)— CLAIMS—HEARING—JUDGMENT.

Where a claimant, appealing to the circuit court from the action of the probate court vacating a judgment allowing his claim against a decedent's estate and in rendering judgment for a less sum after a hearing, appeared in the circuit court for trial of the question as to whether the probate court properly vacated the original judgment, but declined, after an adverse judgment, to make proof of his claim, the court should dismiss the case instead of proceeding to try it, and render judgment against him.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by C. R. King against the estate of Mary J. Stotts, deceased. From a judgment of the circuit court affirming a judgment of the probate court vacating a default judgment for plaintiff allowing his claim, and rejecting the claim, plaintiff appeals. Affirmed in part, and reversed and remanded in part.

Oscar B. Elam, of Aurora, for appellant. Charles L. Henson, of Mt. Vernon, for respondent.

GRAVES, J.

This action originated in the probate court of Lawrence county, December 3, 1906, by the filing of the following unitemized claim against the estate of Mary J. Stotts, deceased:

                            "Original Demand
                "The estate of Mary J. Stotts, deceased, to
                            C. R. King, debtor
                April 28, 1907, to May 26, 1907, 9
                 visits from Crane, Mo., from residence
                 to Stotts City, Mo., 33 1/3
                 miles; detained in attendance 21
                 days visits and detaining.............. $350 00
                March 17th, 1908, to June 9th, visits
                 196 ...................................  197 50
                                                         _______
                  Total amount ......................... $547 50"
                

This demand was accompanied by the usual affidavit, and to it was also attached a waiver of service by the administrator. On Dec. 14, 1908, the probate court rendered a default judgment against the estate for the full amount of the demand. March 22, 1909, the following petition was filed:

"Movant Petition.

"State of Missouri, County of Lawrence —ss.: In the Probate Court, February Term, 1909. In the Matter of the Estate of Mary J. Stotts, Deceased. Charles L. Henson, being of lawful age and duly sworn, upon his oath says that he has good reason to believe and does believe that the demand of C. R. King, allowed by their court on the 14th day of December, 1908, for $547.50 has been improperly allowed, and acting herein for Mary K. Pruitt and Fannie Davis, heirs at law of said Mary J. Stotts, desire to furnish satisfactory evidence of such fact of such improper allowance to this court, and after notice given to said King, the claimant, ask that such order so allowing such claim shall be vacated and the matter tried anew in this court, and for proper relief.

                                     "Charles L. Henson
                "Subscribed and sworn to before me on this
                the 22nd day of March, 1909. C. W. Crooks
                          "Judge of the Probate Court."
                

Notice of this was duly served upon Dr. King March 29, 1909, and upon April 12th, the claimant, King, making a special appearance, moved to strike the motion signed by Henson, quoted above, from the docket for the following reasons: "First. The said action of Mary K. Pruitt and Fannie Davis fails to state facts sufficient to constitute a defense against the said demand of the said C. R. King, or facts that the movements propose to prove to show that the demand was improperly allowed. Second. The court had no jurisdiction over the person of the said C. R. King. Third. The court had no jurisdiction over the subject-matter of said motion of the said Mary K. Pruitt and Fannie Davis. Fourth. The notice served upon the said C. R. King by the said Mary K. Pruitt and Fannie Davis was not served in the time or in the manner prescribed by law, and failed to advise said C. R. King of any facts that said Mary K. Pruitt and Fannie Davis would prove to the court to satisfy the court that the said demand of C. R. King had been improperly allowed. Fifth. The affidavit and motion filed herein on part of said Mary K. Pruitt and Fannie Davis is insufficient to confer jurisdiction of the subject-matter upon the court and fall to state facts sufficient for a defense against the demand of the said C. R. King or facts sufficient to warrant the court in vacating the allowance of said demand."

This motion of the claimant, King, was overruled, and the probate court, on said April 12th, vacated and set aside its judgment of December 14, 1908, and ordered that such demand against the said estate be tried anew. On the same day the probate court entered a new judgment upon the merits allowing to Dr. King $216 instead of $547.50. This judgment on its face purports to have been rendered upon a hearing of testimony in the cause. The claimant, King, thereafter thus moved for an appeal: "Comes now C. R. King and moves the court to grant him an appeal from all of the orders and decisions made and rendered by the court on Monday, April 12, 1909, in the said estate of Mary J. Stotts, deceased, in anywise seeking to affect the rights of said C. R. King as a creditor of the said estate, and particularly the orders, decisions, and judgments of the court vacating or seeking to vacate the allowance of a demand against the said estate of Mary J. Stotts in favor of said C. R. King about December, A. D. 1908, and an order, decision or judgment allowing or attempting to allow a demand against the said estate and in favor of said C. R. King on said April 12, A. D. 1909."

Appeal was granted and the cause in due time reached the circuit court. Upon the advent of the cause in the circuit court, the claimant, King, on Sept. 15th filed a motion to dismiss the complaint of Pruitt and Davis filed in the following language: "Now comes Dr. C. R. King and moves the court to dismiss the complaint of Mary K. Pruitt and Fannie Davis herein for the reasons following, to wit: First. The complaint fails to state facts sufficient to constitute a cause of action against Dr. C. R. King. Second. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to hear or determine the issues therein tendered. Third. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to vacate the allowance made against the estate of said deceased, Mary J. Stotts, December 14, 1908, in favor of said Dr. C. R. King, even if every allegation therein were true and established to the satisfaction of the court. Fourth. No affidavit was ever filed in the probate court or in this court, by or...