Madison Cnty. Bank v. Suman's Adm'r

• Decision Date: 31 October 1883
• Citation: 79 Mo. 527
• Parties: THE MADISON COUNTY BANK, Plaintiff in Error, v. SUMAN'S ADMINISTRATOR.
• Court: Missouri Supreme Court

79 Mo. 527

THE MADISON COUNTY BANK, Plaintiff in Error,

v.SUMAN'S ADMINISTRATOR.

Supreme Court of Missouri.

October Term, 1883.

Error to Bates Circuit Court.--HON. J. D. PARKINSON, Judge.

AFFIRMED.

E. Buler for plaintiff in error.

Robinson, Harkless & Bennett for defendant in error.

PHILIPS, C.

Jacob Suman died intestate at the county of Barton, and his widow, Elizabeth Suman, on the 15th day of October, 1875, took out letters of administration on his estate from the probate court of said county. On the 25th day of March, 1876, the plaintiff, a banking corporation of the state of Indiana, filed its petition in the circuit court of the United States for the western district of Missouri, against the said administratrix to recover judgment on two promissory notes alleged to have been executed by the defendant in his lifetime, to one Corwin, who assigned the same to plaintiff. On this petition writ of summons issued the day it was filed, on which the following return was made: “I hereby certify that I executed this writ by leaving a copy of the same and a copy of the petition filed in this cause, with a member of the family of the within named Elizabeth Suman, administratrix, over fifteen years of age, at her last usual place of abode, in the county of Barton, in the western district of Missouri, on the 7th day of April, 1876.” Afterward, on the 21st day of November, 1876, Wray, who had in the meantime been appointed administrator, vice Mrs. Suman resigned, filed answer to the action. Judgment was rendered therein on the 17th day of January, 1878, in favor of the bank. Afterward this judgment was presented in the probate court of Barton county for allowance against said estate. Allowance was accordingly made for the amount of the judgment, and the same was placed in the fifth class. From this classification the administrator appealed to the circuit court, where on rehearing, the claim was again allowed and certified back to the probate court with directions to place the same in the sixth class. From this order and judgment of the circuit court the plaintiff has appealed to this court.

The contention is as to the proper classification of the demand. Plaintiff claims that the judgment should be placed in the fifth class.

The statute then in force provided that: “All demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate,” shall be classed in the fifth class. Wag. Stat., § 1, p. 102. “All actions commenced against such administrator after the death of the deceased, shall be considered demands legally exhibited against such estate from the time of serving the original process on such administrator.” Ib., § 4. “Any person may exhibit his demand against such estate by serving upon the administrator a notice in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded; and such claim shall be considered legally exhibited from the time of serving such notice.” § 5.

From these provisions it is apparent that no claim can be allowed by the administrator. The allowance is made by the probate court after notice to the administrator. The classification of the allowance depends upon the character of the claim and the time of its exhibition to the administrator. To entitle this demand to the fifth class it must have been exhibited to the administrator, as by the foregoing statute provided, “within one year after the granting of the first letters of administration.” To maintain the required exhibition under the 4th section, the process of the United States court should have been served within the said first year.

1. SERVICE OF PROCESS: officer's return

By the provisions of the Practice Act of this State, section 7, page 654, General Statutes 1865, amended by Laws 1875, page 105, applicable under the acts of congress to the mode of procedure in the federal courts, service of such process could only be made, where the defendant was not personally found, “by leaving a copy of the petition and writ at his usual place of abode, with some person of his family over the age of fifteen years.” The return in this case recites: “with a member of the family of the within named Elizabeth Suman, administratrix, over fifteen years of age, at her last usual place of abode in the county of Barton,” etc. This service is not in conformity with the statute. Her last usual place of abode might not be her present place of abode. This return could be true and yet the defendant in the writ reside in another county or jurisdiction.

In Earle v. McVeigh, 91 U. S. 508, the court say: “When the law provides that notice may be posted on the front door of his usual place of abode in the absence of the family, the intention evidently is that the person against whom the notice is directed should then be living or have his home in the said house. He may be temporarily absent at the time the notice is posted, but the house must be his usual place of abode, so that when he returns home the process posted on the front door will operate as notice, which is all the law requires. By the expression ‘usual place of abode,’ the law does not mean the last usual place of abode, for a party may change his place of abode every month in the year. Instead of that, it is only on the door of his then present residence where the notice may be posted and constitute a compliance with the legal requirement.” In Brown v. Langlois, 70 Mo. 226, the return recited: “at the usual place of abode when in the city of Cape Girardeau.” The court say: “The return does not conform to the law, and the judgment by default is a nullity.” Constructive service of notice is strictly construed and everything may be inferred against the officer's return which its departure from the description of the statute will warrant. Blanton v. Jamison, 3 Mo. 52: Stewart v. Stringer, 41 Mo. 400.

2. ______: ______: cannot be aided by extrinsic evidence: administration.

The plaintiff at the trial sought to aid the return of the marshal by introducing evidence, ore tenus, to show that as a matter of fact the person with whom the summons was left was a member of the family of Mrs. Suman, and that the place of service was her place of abode at the time of the service. If the testimony offered had been admissible for the purpose sought, it would not have helped the plaintiff's case perhaps, for it showed that the process was served on Sunday, which would have invalidated it, if the officer had returned the true facts. The evidence was of a character to indicate that there was a question as to whether the administratrix was really a member of the family with whom the papers were left, and this fact doubtless accounts for the employment of the word “last” in the officer's return.

But we are of the opinion that this parol evidence was incompetent. It is true that Judge McGirk, in Dobbins v. Thompson, 4 Mo. 118, suggested that such evidence would be competent. The point was not necessary to the conclusion reached in that case. But it cannot be upheld on authority or reason. The return of the officer is a part of the record and cannot be impeached collaterally. Brown v. Langlois, supra, 227; Reeves v. Reeves, 33 Mo. 28. It is as much a part of the record as the pleadings and the judgment in the case. Bateson v. Clark, 37 Mo. 31; Richardson v. George, 34 Mo. 108, and note. The return of the officer is conclusive as to the facts recited, on the parties to the suit, and the party injured has his remedy against the officer and his sureties as for a false return. Hallowell v. Page, 24 Mo. 590; Delinger v. Higgins, 26 Mo. 180; McDonald v. Leewright, 31 Mo. 29. It is like the acknowledgment of a deed by such officer. Its imperfect recitals cannot be aided by extrinsic evidence. Samuels v. Shelton, 48 Mo. 444; McClure v. McClurg, 53 Mo. 173; Wannell v. Kem, 57 Mo. 478. Any other rule would be attended with so much uncertainty, resting upon proof in pais, as to produce delays, conjectures and collateral inquiries, to the infinite hurt of litigants, to say nothing of its effect upon the just responsibility of the officers charged with the duty of this important service in the administration of justice.

3. ______, ______: appearance of administrator: classification of judgment.

It is next contended by appellant's counsel that when the administrator entered his appearance to the action by filing answer, he waived the defect in the service of the summons. For the purpose of conferring jurisdiction on the court over the person of the defendant, so as to authorize the judgment rendered therein, the appearance had such effect. But when the appearance was made, more than one year had run after the grant...