Linn County Bank v. Clifton

• Decision Date: 31 December 1914
• Citation: 172 S.W. 388,263 Mo. 200
• Parties: LINN COUNTY BANK v. MARY L. CLIFTON, Plaintiff in Error
• Court: Missouri Supreme Court

172 S.W. 388

263 Mo. 200

LINN COUNTY BANK v. MARY L. CLIFTON, Plaintiff in Error

Supreme Court of Missouri, First Division

December 31, 1914

Error to Linn Circuit Court. -- Hon. John P. Butler, Judge.

Affirmed.

Frans E. Lindquist for plaintiff in error.

(1) The circuit court of Linn county had no jurisdiction over the subject-matter of the action. Such jurisdiction is vested in the probate court. Sec. 22, art. 6, Constitution 1875; Sec 1674, R. S. 1899; Sec. 34, art. 6, Constitution 1875; Secs 191, 192, 1753, R. S. 1899; Mt. Olive and St. Louis Coal Co. v. Slevens, 56 Mo.App. 107; Hoffman v Hoffman, 126 Mo. 486; Beekman v. Richardson, 150 Mo. 436; Matson & May v. Pearson, 121 Mo.App. 128; McKee v. Allen, 204 Mo. 675; Korthman v. Markson, 34 Kan. 542; Kelley's New Missouri Probate Guide, par. 116; Pearce v. Calhoun, 59 Mo. 271; 2 Woerner's Law of Administration, par. 392; Scott v. Royston, 223 Mo. 592; Board of Public Works v. Columbia College, 17 Wall. 531. (2) Giving of notes suspended the right to sue upon the account until demand or maturity of the notes. Steamboat Charlotte v. Bumm, 9 Mo. 66. When the old notes were cancelled and surrendered to Chapman, Clifton & Co., upon the execution of such new notes, strong presumptive evidence that the agreement of the parties was that the old notes should be extinguished. Electric Co. v. Ten Broek, 97 Mo.App. 173. The delivery of the old notes to Chapman, Clifton & Co., marked paid, when the new notes were executed, extinguished the old one. Walker v. Dunham, 135 Mo.App. 409. Old notes should have been filed. Sec. 643, R. S. 1899. Recovery was conditional on giving bond. No bond was given. Sec. 745, R. S. 1899; Eans v. Exchange Bank, 79 Mo. 185. Copy of notes or account sued on should have been attached to the original petition and served upon the executrix. Sec. 187, R. S. 1899; Bank v. Suman, 79 Mo. 527. Demand notes are not deemed payable until presented or demanded. Sec. 460, R. S. 1899; Johnson v. Bank, 173 Mo. 171; Tiedeman on Commercial Paper, sec. 296. (3). Action was prematurely brought. Weinwick v. Bender, 33 Mo. 80; McDowell v. Morgan, 33 Mo. 555; Jennings v. Zerr, 48 Mo.App. 528. No action could be maintained as upon an account, because the cause of action was not due at the time. Heard v. Ritchey, 112 Mo. 516. The petition does not state facts sufficient to constitute a cause of action against the defendant.

Bresnehen & West for defendant in error.

(1) The circuit court had jurisdiction to render the judgment in this cause. R. S. 1909, sec. 197; R. S. 1899, sec. 191. This section has been construed so frequently and the jurisdiction of circuit courts in this regard upheld so often that the question as to their jurisdiction is no longer open to discussion. Bank v. Suman, 79 Mo. 527; Stephens v. Bernays, 119 Mo. 143; Richardson v. Palmer, 24 Mo.App. 480; State ex rel. v. Edwards, 162 Mo. 660; Stephens v. Bernays, 41 F. 401, 44 F. 642; Nichols v. Reyburn, 55 Mo.App. 1; Jamison v. Wickham, 67 Mo.App. 575; Wernse v. McPike, 100 Mo. 486; Ziegenheim v. Tittmann, 103 Mo. 566; Watson & May v. Pearson, 121 Mo.App. 135; Gewe v. Hanszen, 85 Mo.App. 136. (2) This suit is against the executrix of the estate of W. H. Clifton, deceased, to recover money loaned to the partnership firm of Chapman, Clifton & Co., while said W. H. Clifton was a member of the firm. It is not a suit upon the notes given for the various loans that were made, but rather to recover the loans as evidence of which the notes were given. After the retirement of Clifton from the firm and after his death the notes were renewed by the surviving partners in the firm name, and the old notes were cancelled and delivered up to said firm. It is elementary law that the acceptance of a note does not extinguish the debt for which it was given unless such was the intention of the parties at the time. Steamboat Charlotte v. Hammond, 9 Mo. 59; McMurray v. Taylor, 30 Mo. 263; Doebling v. Loos, 45 Mo. 150; Powell v. Charless, 34 Mo. 485; Reyburn v. Mitchell, 106 Mo. 379; Keyser v. Hinkle, 127 Mo.App. 76. The fact that one of the original debtors was deceased at the time the renewal notes were given makes no difference. Unless the parties agreed that the acceptance of the note should have the effect of extinguishing the debt the original debt would continue to exist. Powell v. Charless, 34 Mo. 485; Savings Institution v. Mead, 52 Mo. 543. The question of whether or not the parties did so agree was one of fact for the trial court, and the determination of that question by that court is final. (3) The suit was brought before the two years period of limitations had expired, and the amended petition did not change the cause of action. Under these circumstances it cannot be said that the plaintiff's claim is barred by the administration Statute of Limitations. Gewe v. Hanszen, 85 Mo.App. 136. (4) Where the deceased was one of the original debtors no case has held that demand, protest and notice are necessary to bind him. Leabe v. Goode, 67 Mo. 126; Ridgley v. Robertson, Mo.App. 45.

OPINION

LAMM, J.

This cause was sent and docketed here under a reversed title. We reconstruct the title by transposition as above to agree with our usage and avoid confusion in our reports. When a case comes up on error, by present usage here the title runs the same as the statute prescribes on appeal. [R. S. 1909, sec. 2039.] So, when a defendant is plaintiff in error, it has been found that the word "defendant" creeps by slip into our opinions in a double sense; hence, for convenience and to avoid confusion, throughout this opinion we will use the term plaintiff for "defendant in error" and the term defendant for "plaintiff in error."

The record shows that in the years 1904, '05, '06, one W. H. Clifton was a member of a firm of merchants in business at Brookfield, Missouri, under the style of Chapman, Clifton & Co. At a certain time Clifton retired and the remaining partners continued business under the old firm style. Subsequently, to wit, on the last day of April, 1907, Clifton died testate and some time thereafter his widow, the defendant, Mary L. Clifton, was duly appointed executrix of his will and thereupon took upon herself the burden of administration. Thereafter, on June 3, 1909, plaintiff bank sued her as executrix for money had and received by the firm on sundry dates prior to the retirement of her husband. On the next day summons was served. This was within the two years allowed for the exhibition of claims. On October 8, 1909, leave was granted plaintiff to file an amended petition in forty-five days. Out of time, to-wit, in the ensuing February, such petition was filed in five counts. We infer this was beyond the two years for the exhibition of claims. Without objection on the part of defendant or motion to strike out because filed out of time, or because of a departure, presently an answer was filed making certain admissions and denials and pleading new matter deemed to constitute a defense. A reply coming in, the cause was at issue on the facts and merits, and at a trial to the court without the aid of a jury judgment went for plaintiff bank for $ 4287.71 and costs. No motion for a new trial or in arrest or bill of exceptions was filed, but within a year thereafter defendant sued out a writ of error in the Kansas City Court of Appeals. That court certified the case here on a constitutional point and here it is on the record proper.

At bottom the questions are two, viz.: (1) Does the petition state facts sufficient to constitute a cause of action? (2) Did the circuit court of Linn county have jurisdiction of the subject-matter?

Sufficient further summary of the record to pass on those two questions understandingly will appear in the body of the opinion.

I. Of the petition. (a) The petition alleges, inter alia, that when the money sued for came into the hands of the firm of Chapman, Clifton & Co. during the time testatrix's decedent was a member, notes were taken as evidence of the indebtedness, which were renewed from time to time and part payments were made thereon. At such times as these renewals were made the then outstanding notes were surrendered to the firm and the last series of notes given in renewal were brought in and tendered to defendant. By her answer she pleaded, inter alia, that after her husband died the firm of Chapman, Clifton & Co., as it then existed, went into bankruptcy and these identical notes were allowed against the bankrupt estate in the Federal court having jurisdiction of the bankruptcy proceeding; that plaintiff bank received dividends thereon, Clifton not being a member of the firm at the time and the notes having been renewed by the firm after her husband's retirement; she pleaded the allowance in bankruptcy, as we construe it, by way of estoppel, or else by way of conclusive evidence that the plaintiff had accepted the new notes in full discharge of the old notes on which her husband was bound as a member of the firm. Be it one way or the other, issue was taken on these averments by the reply, and the court found against her on the issue so raised. In this state of the record we are asked to consider the matter pleaded in her answer, and to determine that the court erred in its finding on the issue. But such argument avails nothing; for not only have we no evidence here, absent a bill of exceptions, but the determinative question in hand strikes only at the sufficiency of the petition. To determine the sufficiency of a petition on the averments of an answer is not a rule of decision of this court known to us. We are cited to no case and it is probable on principle that none could possibly exist sustaining the line of argument advanced by learned counsel. A petition stands on its own foot. It...