Newman v. Weinstein

• Decision Date: 08 November 1934
• Parties: HARRY NEWMAN AND LOUIS BALBACH (PLAINTIFFS), RESPONDENTS, v. LEON WEINSTEIN AND LUCY HENSCHEL, EXECUTOR AND EXECUTRIX OF THE ESTATE OF MORITZ WEINSTEIN, DECEASED (DEFENDANTS), APPELLANTS
• Court: Missouri Court of Appeals

75 S.W.2d 871

230 Mo.App. 794

HARRY NEWMAN AND LOUIS BALBACH (PLAINTIFFS), RESPONDENTS, v. LEON WEINSTEIN AND LUCY HENSCHEL, EXECUTOR AND EXECUTRIX OF THE ESTATE OF MORITZ WEINSTEIN, DECEASED (DEFENDANTS), APPELLANTS

Court of Appeals of Missouri, St. Louis

November 8, 1934

Appeal from Circuit Court of City of St. Louis.--Hon. Robert W Hall, Judge.

Reversed and Remanded. (with directions).

Pierre A. Vogel for appellants.

(1) The circuit court on appeal from a justice of the peace court can have no jurisdiction if the justice had none. Miller v Metropolitan Life Insurance Co., 68 Mo.App. 19; McQuoid v. Lamb, 19 Mo.App. 153. (2) Upon suggestion of the death of defendant in the circuit court, the jurisdiction of the Circuit Court in said case ceased, and said Court should have taken no further proceedings, but certified and returned to the Probate Court of the City of St. Louis a transcript of all the entries made in his docket in said cause, together with all papers relating to said suit and filed therein, in the same manner and within the same time as upon an appeal. Revised Statutes of Missouri, 1929 sec. 2911. (3) Even if the circuit court had jurisdiction of said cause upon appeal from the justice court, the court erred in affirming said judgment against Leon Weinstein, executor, and Lucy Henschel, executrix, appellants herein, who had never been parties to the suit in said justice court, and there was, therefore, no judgment against them and the circuit court had no authority to enter any judgment against them without the introduction of some evidence at least as to their being executor and executrix of the estate of the original defendant. Allen v. Jessup, 192 S: W. 720. (4) There was no evidence to support the verdict. Therefore, it was not necessary to save an exception to bring the error before this Court on appeal. Reynolds v. Title Guaranty Trust Co. (5) Even though the circuit court had jurisdiction, and the executor and executrix, appellants herein, were properly made parties, still, without the introduction of the St. Louis Probate Court records to prove their capacities, the presumption reasonably obtains, that same contained nothing to show same. Allen v. Jessup, 192 S.W. 720; Davis v. Smith, 75 Mo. 219. (6) This was a fatal error apparent upon the face of the record and reviewable in this court without exception in the lower court. Foster v. Sayman, 181 S.W. 1186. (7) It is not the question of jurisdiction over the persons of appellants, but the lack of jurisdiction of the subject of the action, that is complained of; and the latter, may, as has always been held, be raised for the first time in the Courts of Appeals. Wolff v. Vette, 17 Mo.App. 36.

Harry Newman, Louis Balbach and A. H. Whittington for respondents.

(1) There is nothing before this court on appeal, because no exceptions were saved and no motion in arrest was filed to preserve errors, if any, appearing on the face of the record. Silberberg v. Gitenstein, 168 Mo.App. 399; Wilbrandt v. Laclede Gas Light Co., 135 Mo.App. 220; Hopper v. Bowen, 249 S.W. 92; Midwest Natl. Bank & Trust Co. v. Parker Corn Co., 245 S.W. 217. (2) Jurisdiction once properly acquired by the circuit court on appeal from the justice remained there despite changes of circumstances beyond plaintiff's control. Mann v. Bank of Greenfield, 20 S.W.2d 502. (3) It was not incumbent on the circuit court to send the cause to the probate court on the death of the sole defendant, because jurisdiction of the circuit court in establishing claims against an estate is concurrent with that of the probate court. Sec. 189, R. S. 1929; Art. VI, sec. 22, Const. of Mo.; Colvin v. Six, 79 Mo. 198; Gray v. Bowles, 74 Mo. 419; State ex rel. v. Holtcamp, 266 Mo. 347; State ex rel. v. Reynolds, 209 Mo. 161. (4) Alleged insufficiency of evidence to establish status of the substituted defendants is waived by filing motion for new trial; and because defendants have not excepted to the action of the circuit court in making them defendents. State ex rel. v. Brown, 23 S.W.2d 1092; State ex rel. Bulger v. Southern, 214 S.W. 100; State ex rel. Brown v. Stewart, 281 S.W. 768; Brown v. British Dominions Gen. Ins. Co., 228 S.W. 883; Pry v. Hannibal & St. Joseph R. R. Co., 73 Mo. 123.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

Though the record does not so show, the points involved on the appeal not going to the merits of the action, the statement appears unquestioned in plaintiffs' brief that the action is one for the balance due plaintiffs for legal services rendered.

The case originated in a justice's court in the city of St. Louis, wherein the original defendants were Moritz Weinstein and Bertha Sperling. Upon a trial before the justice, judgment was rendered in favor of plaintiffs, and against defendant Moritz Weinstein, for the sum of $ 240, together with costs of suit, and the cause was dismissed as to defendant Bertha Sperling.

Thereafter defendant Moritz Weinstein, in due course, perfected his appeal from the judgment of the justice to the Circuit Court of the city of St. Louis, where the case lay from May 12, 1931, when the transcript of the justice's docket and the process and other papers relating to the action were filed with the clerk of the circuit court, until July 14, 1932, when the death of defendant Moritz Weinstein was suggested to the court by plaintiffs, and when, upon their application, the cause was ordered to continue in the names of Leon Weinstein and Lucy Henschel, executor and executrix, respectively, of the estate of Moritz Weinstein, deceased.

On July 26, 1932, summons was issued against the said Leon Weinstein and Lucy Henchel in their representative capacities, commanding them to appear before the court at the return term of the writ to show cause, if any they had, why the action should not be revived against them as the personal representatives of the deceased; and the return of the sheriff showed personal service had upon both of such parties.

On November 4, 1932, the court entered an order that inasmuch as cause had not been shown why the action should not be revived, it should stand revived in the names of Leon Weinstein and Lucy Henschel, executor and executrix, respectively, of the estate of Moritz Weinstein, deceased.

On March 8, 1933, the defendants having failed to appear to prosecute their appeal, upon motion of plaintiffs the judgment of the justice was affirmed for such failure. The judgment was that plaintiffs have and recover out of the assets and effects of the estate of Moritz Weinstein, deceased, in the hands of the substituted defendants as his personal representatives, and from the surety on the appeal bond, the sum of $ 240, with interest thereon from the date of the justice's judgment, together with the costs of suit, and that execution issue therefor.

From such judgment defendants' appeal to this court has followed in the usual course.

The chief insistence of defendants is that upon the suggestion and showing in the circuit court of the death of the original defendant, Moritz Weinstein, the jurisdiction of the circuit court to proceed further with the cause on the merits ceased and was divested, and that the circuit court should thereupon have at once noted such fact in its records, and have transferred the cause to the probate court to be proceeded with therein as in the case of other demands lodged against the estate of the deceased.

Though the point is a novel one, and so far as we know, runs counter to what has been the accepted practice in the courts of this State, we see no escape from the conclusion that defendants are correct in their views about the matter.

At the outset of the case, however, plaintiffs argue that the question of the jurisdiction of the circuit court to have revived the action in the names of the personal representatives of the deceased defendant, that being the actual point at issue, has not been preserved by defendants so as to be here for our review, there being no bill of exceptions, and no motion in arrest of judgment having been filed to call attention to errors appearing on the face of the record proper. As we understand plaintiffs' position, they really concede that the things complained of do appear in the record proper rather than as matters of exception, and rely upon defendants' failure to have filed a motion in arrest, rather than upon the absence of a bill of exceptions, as precluding our consideration of such matters on this appeal. Suffice it merely to say that plaintiffs' objections are not well taken. An error apparent upon the face of the record proper is reviewable on appeal without either a motion for a new trial or in arrest having been filed, at least where, as here, the error is a material one, and going to a matter of substance in the action. [State ex rel. v. Dickey, 288 Mo. 92, 231 S.W. 582; Arcadia Timber Co. v. Harris (Mo.), 285 S.W. 428; Chilton v. Drainage Dist. No. 8, 224 Mo.App. 467, 28 S.W.2d 120; Lowry-Miller Lumber Co. v. Dean, 225 Mo.App. 299, 29 S.W.2d 736; Schwettman v. Sander (Mo. App.), 7 S.W.2d 301.]

So the question for our determination ultimately resolves itself into this: Is the jurisdiction of the circuit court, properly and fully acquired over an appeal taken in due course from the judgment of a justice's court, thereafter divested by the death of the sole defendant pending the bringing of the case to final judgment in the circuit court? Everything else in the case quite logically depends for its decision upon the answer to be made to this question.

We are not unaware of the general doctrine relied upon by plaintiffs in opposition to defendants'...