Moffett Bros. Partnership Estate v. Moffett

• Decision Date: 06 March 1940
• Docket Number: 36089
• Citation: 137 S.W.2d 507,345 Mo. 741
• Parties: In re Moffett Brothers Partnership Estate, Styled on Abstract and Briefs as Commerce Trust Company and B. C. Howard v. Louise McGrew Moffett, and Louise McGrew Moffett as Executrix of the Estate of Thomas S. Moffett, Appellants
• Court: Missouri Supreme Court

137 S.W.2d 507

345 Mo. 741

In re Moffett Brothers Partnership Estate, Styled on Abstract and Briefs as Commerce Trust Company and B. C. Howard v. Louise McGrew Moffett, and Louise McGrew Moffett as Executrix of the Estate of Thomas S. Moffett, Appellants

No. 36089

Supreme Court of Missouri

March 6, 1940

Motion for Rehearing Overruled January 23, 1940.

Motion to Transfer to Banc Overruled March 6, 1940.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded (with directions to enter judgment denying claimant additional fees in part and approving the payment of fees in part.)

A E. Watson and Martin J. O'Donnell for appellants.

(1) The court erred in holding that the Commerce Trust Company as executor de bonis non of the estate of John Moffett and as administrator of Moffett Brothers partnership estate could properly represent both estates in the same suit where it was attempting to recover for the estate of John Moffett on a claimed indebtedness against Moffett Brothers partnership estate and where the same attorney representing said Commerce Trust Company in its claimed representative capacities prosecuted the claim in favor of the John Moffett estate and against Moffett Brothers partnership estate for the reason that it was contrary to law and public policy to permit the Commerce Trust Company to represent two estates in the same suit, the interests of which are conflicting and antagonistic, and to pay the fees of said attorney from the assets of one of the estates. State ex rel. Miller's Admr. v. Bidlingmaier, 26 Mo. 486; State ex rel Mueller's Admr. v. Reinhardt, 31 Mo. 95; Swoope v. Swoope, 173 Ala. 157; Barber v. Barber, 79 A. 482; Black v. Shreeve, 7 N.J.Eq. 458; Globe & Rutgers Fire Ins. Co. v. Hines, 273 F. 777; Arrington v. McClure, 326 Mo. 1025; Davis v. Roberts, 206 Mo.App. 125; Aegerter v. Groves, 226 Mo.App. 140. (2) The court erred in directing Commerce Trust Company to pay B. C. Howard from the assets of the Moffett Brothers partnership estate for services rendered by said Howard as attorney because said services were rendered by the said B. C. Howard while serving conflicting and antagonistic interests in the partition suit in Harper County, Kansas, wherein the Commerce Trust Company as executor de bonis non of the estate of John Moffett, deceased, through said Howard as attorney, prosecuted a claim against itself as alleged administrator of Moffett Brothers partnership estate, which claim was invalid and was attempted to be contested by persons interested in said Moffett Brothers partnership estate and whose right to contest was ignored by the court at the instance of said attorney and the Commerce Trust Company, through its said attorney, B. C. Howard, interposed no defenses to the claim being prosecuted by the Commerce Trust Company as executor de bonis non against the Moffett Brothers partnership estate, but confessed judgment against Commerce Trust Company as such administrator and refused to file a motion for a new trial or appeal and on appeal to the Supreme Court of said State by other interested parties prayed that said judgment be affirmed. Beam Co. v. Bakewell, 224 Mo. 226; MacDonald v. Wagner, 5 Mo.App. 58; Rochester v. Gonterman, 49 S.W.2d 71; Jacobs v. Jacobs, 100 W.Va. 612, 131 S.E. 459; Logan v. Logan, 130 N.E. 32; Sun B. & L. Assn. v. Rashkes, 119 N.J.Eq. 443, 183 A. 274; Strong v. International Invest. Union, 183 Ill. 97; Weeks on Attorneys at Law, sec. 271; Heffron v. Flower, 35 Ill.App. 200; Adams v. Woods, 8 Cal. 306; Decelis v. Brunson, 53 Cal. 372; Spinks v. Davis, 32 Miss. 152; McArthur v. Fry, 10 Kan. 233; Herrick v. Catley, 30 How. Pr. 208.

Hugh M. Hiller and Wm. Bush for Commerce Trust Company.

The points and authorities as set out by respondent, B. C. Howard, are hereby referred to and hereby adopted to the same extent as if the same were set out in full in this brief.

Orlin A. Weede and B. C. Howard for B. C. Howard.

(1) The decrees in the suit complained of No. 7374, District Court of Harper County, Kansas, are final and stand res judicata, and cannot be collaterally attacked, said decrees having been affirmed by the Kansas Supreme Court in Clark, etc., Louise McGrew Moffett v. Moffett et al., Commerce Trust Company et al., 136 Kan. 711, 18 P.2d 555, and certiorari twice denied by the United States Supreme Court, 290 U.S. 642, 290 U.S. 602. Also sustained by Moffett v. Moffett et al., 131 Kan. 582, 292 P. 947. Said Harper County final decrees were also attacked in the United States courts, which courts unanimously sustained the District Court of Harper County, Kansas, Suit 7374: Louise McGrew Moffett, Individually and as Executrix of the Thomas S. Moffett Estate, v. R. O. Robbins, Administrator of the Estate of John Moffett, Deceased, in Kansas, 14 F.Supp. 602, Louise McGrew Moffett, Individually and as Executrix of the Thomas S. Moffett Estate, v. R. O. Robbins, Administrator of the Estate of John Moffett, deceased, in Kansas, 81 F.2d 431, where the United States Circuit Court of Appeals, Tenth Circuit, sustained the United States District Court for Kansas in suit last mentioned, certiorari denied by the United States Supreme Court, 298 U.S. 675. The decrees of the District Court of Harper County, Kansas, Suit No. 7374 aforementioned, cannot now be relitigated. Shaller v. Miss. Valley Trust Co., 3 S.W.2d 729; Gorg v. Rutherford, 31 S.W.2d 586; State ex rel. Gott v. Fidelity & Deposit Co., 298 S.W. 83; Am. Auto Ins. Co. v. Benedetto, 58 F.2d 918; Nougue v. Clapp, 101 U.S. 551; Essany Film Mfg. Co. v. Kane, 258 U.S. 358; Scotland Co. v. Hill, 132 U.S. 107; Southern Pac. Railroad Co. v. United States, 168 U.S. 1; Parker Bros. v. Fagan, 68 F.2d 616. When a party has a defense which he could have interposed, and was not prevented from doing so by fraud, accident or mistake, he cannot reserve that defense to some other time or forum and thus split up litigation, and, if he suffers through his negligent failure to interpose the defense at the proper time, in the proper court, it is from his own fault and he cannot ask relief therefrom in a court of equity. Smith v. Apple, 6 F.2d 559; Sapulpa Pet. Co. v. McCray, 4 F.2d 645; Com. Elec. Supply Co. v. Curtis, 288 F. 657; Hottelet Co. v. Garden City Milling Co., 285 F. 693; Pierce v. Natl. Bank of Commerce, 268 F. 487. Accordingly all issues presented and determined or considered or which could have been presented are no longer open to question, in the absence of fraud, accident or mistake whereby the unsuccessful party has been prevented from fully exhibiting his case. Luikart v. Farmers Lbr. Co., 38 F.2d 588; United States v. Throckmorton, 98 U.S. 61; Toledo Scale Co. v. Computing Scale Co., 261 U.S. 599; Riverside Oil Co. v. Dudley, 33 F.2d 749; Marshall v. Holmes, 141 U.S. 589; Natl. Surety Co. v. State Bank, 120 F. 593; Grubb v. Pub. Utilities Comm. of Ohio, 50 S.Ct. 378; Am. Surety Co. v. Baldwin, 287 U.S. 156. (2) Appeal may be dismissed where statement does not contain fair and concise statement of facts only. Hunt v. Hunt, 307 Mo. 375, 270 S.W. 365; Hartweg v. K. C. Rys. Co., 231 S.W. 269. (3) Probate court practice prevails in circuit court. Liebaart v. Hoehle's Estate, 111 S.W.2d 925; Murphy v. Pfeifer, 105 S.W.2d 39. (4) Full faith and credit. Decisions of Kansas Supreme Court binding upon Missouri Supreme Court. Robertson v. Security Benefit Assn., 114 S.W.2d 1009. (5) Collateral attack. The appointment of an administrator is not subject to collateral attack. Bell, Public Admr., v. Bank, 188 Mo.App. 383. (6) A corporate fiduciary which makes a deposit of $ 200,000 with the Finance Department of the State of Missouri under Sections 5422 and 5463, Article III, of Chapter 34, Revised Statutes 1929, is qualified to act as an executor or administrator or in any other fiduciary capacity by appointment of any court or under will without giving bond as such. Smith v. St. Louis Union Trust Co., 104 S.W.2d 344. (7) A surviving partner of a partnership is a trustee only for the purpose of liquidating a dissolved partnership. Groves v. Agerter, 226 Mo.App. 182, 42 S.W.2d 974. This case (Syl. 1, p. 978 -- 42 S.W.2d 978) discredits Green's Admr. v. Virden, 22 Mo. 506.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

September 10, 1936, B. C. Howard, an attorney, and hereinafter referred to as claimant, filed his petition in the Probate Court of Jackson County (at Kansas City) asking for an allowance against Moffett Brothers partnership estate for legal services alleged to have been rendered the estate. The Commerce Trust Company was the administrator de bonis non of the estate, or so considered for purposes of this opinion. The petition alleged that the administrator employed claimant, and that since employment he "has continuously given legal advice and rendered legal services to the administrator for which he had received to date of filing petition the sum of $ 1300." Claimant further alleged "that the action of said administrator in the payment of said sum of $ 1300 as aforesaid, should be approved, and that said administrator should be authorized and directed to pay to" claimant "on account of legal advice and services rendered such additional amount as the court may deem right and proper in the premises."

Louise McGrew Moffett, individually, and as executrix of the estate of Thomas S. Moffett, her deceased husband, who was a member of the Moffett Brothers partnership, resisted the allowance of any further fee to claimant and endeavored to prevent the approval of the payment of the $ 1300. The matter, by appeal reached the circuit court and that court, on January 25, 1938, allowed claimant an additional fee of $ 11,500 and approved the payment of the $ 1300. Louise McGrew Moffett, in both...