McManus v. McDowell

• Decision Date: 14 February 1882
• Citation: 11 Mo.App. 436
• Parties: CAMILLA S. McMANUS, Respondent, v. J. J. McDOWELL ET AL., Appellants.
• Court: Missouri Court of Appeals

11 Mo.App. 436

CAMILLA S. McMANUS, Respondent,

v.J. J. McDOWELL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1882.

1. The probate court has no jurisdiction to try an action against a former executor for a debt due by him to the testator before the latter's death.

2. A judgment of the probate court which recites that it is in part for a debt due by a former executor to the testator while living, is void, and a sale of real estate under it passes no title.

3. The reversal of a judgment removing an executor, and an order reinstating him, cancels a judgment rendered against him, pending the appeal, at the suit of an administrator de bonis non.

APPEAL from the St Louis Circuit Court, BOYLE, J.

Affirmed.

D. T. JEWETT, for the appellants, cited: Wag. Stats., p. 72, sect. 8; p. 119, sect. 1; p. 81, sect. 67; p. 87, sect. 32; McCarty v. Frazer, 62 Mo. 263; Johnson v. Beasley, 65 Mo. 250; The State v. Douglass, 50 Mo. 593; Haeussler v. Scheitlin, 9 Mo. App. 303.

SIM. T. PRICE, for the respondent: A reversal of a judgment restores a party to all the rights he had before the judgment.-- Gott v. Powell, 41 Mo. 417; Jones v. Hart, 60 Mo. 364; Freem. on Judg., sect. 482; Brown v. Troup, 33 Miss. 35. Reversal of a prior judgment causes a subsequent judgment, recovered on the prior judgment, to fall with it. “This is a principle founded in plain common sense, and in the law of immutable justice.”-- Waldon v. Ely, 2 N. J. L. ^*79; Steelman v. Ackley, 2 N. J. L. ^*165; Johnson v. Van Dorm, 3 N. J. L. ^*375; Anderson v. Radley, 3 N. J. L. ^*1035. The jurisdiction of courts of limited powers must affirmatively appear from the record. There is no presumption that they had jurisdiction.--Freem. on Judg., sect. 517; Eaton v. St. Charles County, 8 Mo. App. 185; Tebbetts v. Tilton, 31 N. H. 289; Withers v. Patterson, 27 Texas, 491; Thomas v. Dunica, 15 Mo. 385. “No title passes under or by virtue of an execution issued upon a void judgment; and if a judgment is void, advantage can be taken of it in any collateral proceeding.”--Freem. on Judg., sect. 120; Fithian v. Monks, 43 Mo. 502.

THOMPSON, J., delivered the opinion of the court.

This is an action of ejectment, commenced in the St. Louis Circuit Court, for the recovery of the possession of a lot of ground situated on Morgan Street, in the city of St. Louis, and for rent and damages for the detention thereof. The petition is in the usual form, and the answer is a general denial. On the trial the plaintiff obtained judgment, from which the defendants have appealed.

The plaintiff, in support of her title, offered in evidence:--

1. A certified copy of a judgment record of the St. Louis Circuit Court, in favor of the plaintiff against Thomas A. Walker, said judgment being dated October 11, 1877.

2. A sheriff's deed, and papers thereto annexed, dated July 28, 1880, whereby the sheriff, by levy and sale under an execution issued upon said judgment, had conveyed the land in controversy to plaintiff in this suit.

It was admitted that Thomas A. Walker was the common source of title, from whom both the plaintiff and the defendants claimed title.

It was also admitted that the defendant McDowell was the tenant of the defendant Williams, in possession when this suit was commenced, paying for said land a monthly rent of $25.

The plaintiff also offered evidence showing damages and the monthly rental value of the land, and then rested.

The defendants, to support their title, then offered in evidence the deed of the marshal of the city of St. Louis, and papers thereto annexed, dated September 25, 1877, whereby the land in suit was sold to the defendant Williams, as trustee for the wife of Thomas A. Walker.

It was admitted that the defendants had been in possession of said land since the sale thereof to the defendant Williams by the marshal.

The defendant here rested.

The plaintiff, in rebuttal, offered in evidence, as a substitute for the full record, what was agreed by the attorneys for both parties to be a correct abstract of certain records of the probate court of the county (now city) of St. Louis and of the St. Louis Circuit Court and the St. Louis Court of Appeals.

The defendants' attorney objected to them as incompetent and irrelevant evidence, but did not object because they were abstracts.

This evidence was admitted by the court, the defendants, by their counsel, excepting.

The abstracts are as follows:--

“Thomas A. Walker was duly commissioned as executor of the will of his father, Isaac Walker, in 1868.

January 8, 1873, the probate court of St. Louis County removed Thomas A. Walker as executor, on the ground of alleged non-residence. On the same day an appeal was allowed the said Walker from said order of removal, to the circuit court of St. Louis County.

On March 4, 1874, on a trial anew in the circuit court, the order of the probate court was sustained.

On March 18, 1874, on appeal was allowed to the general term of the circuit court.

On June 24, 1874, the general term affirmed the special term.

On July 6, 1874, the general term allowed an appeal to the supreme court. Cause was thence transferred to the court of appeals, which, on March 7, 1876, reversed the judgment below, and rendered its own judgment, dismissing the proceedings for removal.

On April 17, 1876, the probate court, in pursuance of the judgment of the court of appeals, on receipt of a mandate, reinstated Thomas A. Walker as executor. For a subsequent cause he was removed on July 28, 1877.

On January 8, 1873, the same day on which Walker was first removed, the probate court appointed John G. Priest administrator, etc., as successor to Thomas A. Walker, removed. And said Priest thereafter commenced a proceeding in the probate court against said Walker, to recover from him the assets of the estate in his hands, when he was removed as executor, and balance of a debt due by him to his testator.

And on July 22, 1874, the probate court rendered its judgment against said Walker, in said proceeding, for $38,941.17; and on March 1, 1875, modified said judgment by reducing the amount thereof to $26,498.51, and the return of certain scrip and stock belonging to the estate and in possession of said Walker; the said judgment being partly for the balance of debt due by said Walker to his testator.

On July 28, 1877, Thomas A. Walker, in virtue of an agreement between himself and the other heirs of Isaac Walker, was again removed from the office of executor. And afterwards, on same day, John G. Priest was appointed and qualified as successor to the said Walker, as administrator with the will annexed.

On August 16, 1877, said Priest, as administrator, with the consent of the heirs of Isaac Walker and the probate court, assigned on the record said judgment as modified, to George J. Williams, as trustee for Mary C. Walker, wife of Thomas A. Walker, for the expressed consideration of $7,500.

On August 18, 1877, said Williams had execution issued from the probate court on said judgment, and levied the same on the lands set off to Thomas A. Walker, as his part of his father's estate; and the lot here sued for is a part of those lands.”

This was all the evidence offered by the plaintiff to sustain her title.

The court, at the request of the plaintiff, gave the following instructions:--

“ First. The court, sitting as a jury, declares the law to be, that the judgment of the probate court was avoided, when the judgment of removal was reversed and Walker reinstated, and that the judgment ceased to exist, and, therefore, it must find for the plaintiff.

Second. The court, sitting as a jury, declares the law to be, that even if the judgment of $26,498.51, against Walker, was not vacated by the reversal of the order of renewal, yet, when Walker was reinstated, he thereby became payor and payee of the judgment, and that it was immediately upon his reinstatement, discharged by operation of law, and, therefore, it must find for the plaintiff.

Third. The court, sitting as a jury, declares the law to be, that the probate court has no jurisdiction of a suit to collect a debt due by an executor to his testator, and that the judgment against Walker, being in part for such debt, the judgment is void, and, therefore, it must find for the plaintiff.”

To the giving of these instructions, the defendants' counsel duly excepted.

The defendants asked no instructions.

The questions which arise upon this record will best be understood if the provisions of the statute existing at the time which bear upon them are considered. The statute relating to executors and administrators contained the following provisions: “Letters testamentary and of administration shall in no case be granted to a non-resident of this state, and, where an executor or administrator shall become non-resident, the court having jurisdiction of the estate of the testator or intestate of such executor or administrator, shall revoke his letters.” Wag. Stats. 72, sect. 8.

“Appeals shall be allowed from the decisions of the court having probate jurisdiction to the circuit court in the following cases: * * * ninth, on all orders revoking letters testamentary or of administration.” Wag. Stats. 119, sect. 1.

“If all the executors or administrators of an estate die or resign, or their letters be revoked, in cases not otherwise provided for, letters of administration of the goods remaining unadministered shall be granted to those to whom administration would have been granted if the original letters had not been obtained, or the persons obtaining them had renounced the administration; and the administrator shall perform the like duties and incur the like liabilities as the former executor or administrators.” Wag. Stats. 77, sect. 46.

“If any executor or administrator die, resign, or his letters be revoked, he or his legal representatives shall account for, pay, and deliver to his successor, or to the surviving or remaining executor or administrator, all money, real and personal property of...