McCormick v. Groh

• Decision Date: 13 November 1917
• Docket Number: No. 2102.,2102.
• Citation: 198 S.W. 445
• Parties: McCORMICK v. GROH.
• Court: Missouri Court of Appeals

198 S.W. 445

McCORMICK v. GROH.

No. 2102.

Springfield Court of Appeals. Missouri.

November 13, 1917.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action by Sam McCormick against John E. Groh, administrator of the estate of John S. Benbrook, deceased. From the judgment, plaintiff appeals. Reversed, and cause remanded, with directions to enter judgment for plaintiff for the full amount paid by him as surety on the appeal bond given on the appeal by heirs from judgment against decedent's estate.

Mayhew & Sater, of Monett, for appellant. C. R. Landrum, of Mt. Vernon, H. A. Gardner, of Monett, and I. V. McPherson, of Aurora, for respondent.

STURGIS, P. J.

This case involves a question of ultimate liability for costs of an appeal from the probate court. John S. Benbrook died intestate in Lawrence county, leaving several children and heirs. Letters of administration were granted on his estate, and one of his children, Emery Benbrook, presented a claim against said estate for $1,290.50 for services in caring for the deceased during the last years of his life. A hearing was had in the probate court and the demand allowed in the sum of $800. Others of the children and heirs employed attorneys and actively contested the allowance of this claim in the probate court. One of the attorneys so employed made and filed an affidavit for appeal to the circuit court as agent and attorney for the estate of John S. Benbrook, deceased, and such appeal was allowed. When the case reached the circuit court, the claimant's attorney filed a motion to require the heirs opposing the claim to give an appeal bond, alleging that the attorney filing the affidavit for appeal did not represent the administrator, but certain of the heirs only, and that the administrator had not appealed said cause, and did not want to contest the claim. The administrator lent his aid to this motion, and the court required the appeal bond to be given by such contesting heirs. The court doubtless acted on the theory that the appeal was really taken by the contesting heirs as the statute (section 289, R. S. 1909) allows, and that the appeal could not be dismissed for want of a bond, provided the appellant would file a sufficient bond in the circuit court (section 294, R. S. 1909). The case was afterwards tried in the circuit court resulting in a verdict for the claimant for $200. The circuit court thereupon entered judgment that the claimant, Emery Benbrook, have and recover of and from the estate of John Benbrook, deceased, and the heirs of said Benbrook appealing in said cause, and the sureties on the appeal bond, the sum of $200 and the costs of the case. This judgment against the sureties is authorized by section 296a, Laws 1911, p. 87.

Two of the said sureties on the appeal bond thereafter paid and discharged the said judgment, amounting to $429.64, the items of said judgment being: Claimant's judgment, $200; costs in probate court, $104.45; costs in circuit court, $125.29. The two sureties who paid this judgment, one-half each, thereafter presented their claims against the estate of John S. Benbrook in the probate court to recover the amount paid by them, respectively. These claims the administrator contested in the probate court where they were allowed. The administrator appealed to the circuit court where he succeeded in limiting the recovery to the first two items named, to wit, the claimant's judgment and the costs in the probate court. The present case is an appeal by one of the sureties because of the circuit court's refusal to allow him as part of his demand against the said estate one-half the circuit court costs so paid by him as surety on the appeal bond.

The trial court evidently proceeded on the theory that as the claimant, Emery Benbrook, had prevailed in the probate court in the sum of $800 and the costs of that court, the judgment in the circuit court being for only $200, the principal and sureties in the appeal bond ought not to have to pay that judgment, nor the costs in the probate court which accrued prior to the giving of the appeal bond, but that, since the claimant prevailed in the circuit court, though in a smaller amount, yet such recovery carried with it the costs, and for this the surety was liable as between the estate of John S. Benbrook and him.

The right of an heir, and others interested in an estate, to appeal from the judgment allowing a demand against such estate has long been the statutory law of this state. Section 289, R. S. 1909, so providing is the same as in previous revisions. It has also been the law for an equally long time that the appellant, other than the executor or administrator, must on taking an appeal such as this give an appeal bond conditioned to pay all debts, damages, and costs that may be adjudged against him. Until the act of 1911 (page 87) there was no statutory authority...