North Missouri R.R. Co. v. Parks

• Decision Date: 31 October 1863
• Citation: 34 Mo. 159
• Parties: THE NORTH MISSOURI RAILROAD COMPANY, Plaintiff in Error, v. R. H. PARKS, ADMINISTRATOR OF JAMES GREEN, Defendant in Error.
• Court: Missouri Supreme Court

34 Mo. 159

THE NORTH MISSOURI RAILROAD COMPANY, Plaintiff in Error,

v.R. H. PARKS, ADMINISTRATOR OF JAMES GREEN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1863.

Error to St. Charles Circuit Court.

The North Missouri Railroad Company, plaintiff in error, presented a demand of five hundred dollars, in the Probate Court of St. Charles county, on the 11th day of October, 1856, for allowance against the estate of James Green; Robert H. Parks, defendant in error, being the administrator. Afterwards, on the 8th day of December, 1856, notice on the said demand was waived in open court, and on the 21st day of March, 1857, the demand was allowed and ordered to be paid in the seventh class.

On the 20th day of March, 1860, at the request of the defendant in error, a writ of error was issued from the Circuit Court of St. Charles county to the said Probate Court, in obedience to which the record of the cause in the said Probate Court was sent to the Circuit Court, and the case was heard at the September term of the Circuit Court, 1863, by the court sitting as a jury. On the trial of the cause, plaintiff in error moved the court to dismiss the writ of error, for the reason that it did not lie in a case of this nature; which motion was overruled by the court, and the overruling was excepted to by plaintiff in error. In the progress of the trial, the defendant in error introduced testimony showing that letters of administration were granted to Robert H. Parks on the 6th day of April, 1853; that due notice of the granting of said letters was given by publication, and that the claim was barred.

To all this it was objected by the plaintiff in error, that no testimony dehors the record of the Probate Court was admissible. The objection was overruled by the court, and the plaintiff in error excepted. The plaintiff in error below assigned for error, that the Probate Court allowed the claim of plaintiff in error against defendant in error after the expiration of three years from the date of the letters of administration granted on the estate of the said Green. The court, sitting as a jury, rendered a judgment in favor of defendant in error. Plaintiff in error thereupon filed his motion for a new trial, which being overruled by the court, he sued out his writ of error to the Supreme Court.

Lewis and Alexander, for plaintiff in error.

As will be seen by another paper, filed by plaintiff in error, in this cause, the first point made by plaintiff in error is the following:

I. A writ of error does not lie from the Circuit Court to the Probate Court. (2 R. C. 1295; Laws of 1859, pp. 29, 30, § 6, 7, 17; 1 R. C. 535, § 15; 9 Mo. 117-120; 3 Gill. 497; 2 Tidd's Practice, 1134; 3 Mo. 339.) Writs of error had their origin in the Chancery Courts, but with reference to the law of the United States they are common law writs; they were issued for the purpose of correcting errors of fact and errors of law. The writ of error which was issued in this cause, from the St. Charles Circuit Court to the St. Charles Probate Court, may be termed, under the practice, a writ of error generally; that is, a writ requiring the record of the Probate Court to be sent up to the Circuit Court. It is issued to correct an error in law. This writ, then, being a common law writ, we take the position that it does not lie to any court not having a common law jurisdiction, unless the statutes of our State have expressly otherwise provided. (R. C. 1855, p. 1295, § 2.) “Writs of error shall issue on demand, as a matter of right, on the final decision or judgment of the County Court from the Circuit Court, in term time or vacation, except in relation to probate matters, within ninety days from such judgment or decision.” Thus, by this section of the statute, by express provision writs of error do not lie from Circuit Courts to County Courts in relation to probate matters. This is a probate case--a demand which has been allowed against an estate, the justice of which the defendant has never questioned. It would seem, from this section, that there ought to be no question as to the law; and the remedy in this case was by an appeal from the Probate Court; the statute especially provides for it. (R. C. p. 535, sec. 15; Laws of 1859, p. 29.) Nowhere in the statutes can it be found that a writ of error lies to a Probate Court, for the reason that a remedy has already been provided by appeal. (See 3 Gill. 497; 2 Tidd's Practice, 1134.)

II. A writ of error goes to the record. The Circuit Court erred in admitting any testimony, and in considering matters dehors the record of the Probate Court. The evidence before the Probate Court should have been preserved by a bill of exceptions. (12 Mo. 602; 3 Mo. 341; 2 Tidd's Practice, 1136; 7 How. Miss. Rep. 414-419; 24 Wend. 496; 12 Ohio, 132-148; 11 Alabama, 732-740; 27 Mo. 280; 7 Vermont, 89-91.) As stated above, the writ of error goes to the record. The plaintiffs in error below, in order to make out their case, found it necessary to introduce evidence dehors the record of the Probate Court, which, in obedience to the writ of error, had been sent up to the Circuit Court. None of the testimony in the Probate Court was preserved by a bill of exceptions. The authorities are uniform to the effect, that, in order to use testimony outside of the record above, it must be preserved by a bill of exceptions below.

III. It does not appear from the record in the Probate Court, or from the assignment of errors by plaintiff in error below, that any error was committed by said court. (9 Mo. 229; 8 Mo. 169; Steph. Plead'g, 117-119.)

Writs of error are issued for the purpose of correcting errors which appear on the face of the record of the court to which they are directed. (Steph. Plead'g, 117-119.) If upon an examination of the record of the lower court, no error appears to have been committed, then no error has been committed. By referring to the assignment of errors, it will be seen that he assigns for error the fact that the Probate Court allowed the claim of plaintiff in error after three years from the date of the granting of the letters of administration had expired. Now this court in 8 Mo. 169, and 9 Mo. 229, has expressly decided that such an assignment as the above is bad, and hold that the party should state that more than three years had expired since the demand accrued. There are many instances where demands have not become due until some time after the death of the party against whose estate the demand is presented.

IV. Notice of the presentment of the demand in question having been waived by the administrator, and he having failed to plead the statute of limitations in the Probate Court, no error was committed by said court in rendering judgment against him. (16 Mass. 429; 9 Mo. 266; 13 Mass. 201; 16 Mass. 172; 15 Mass. 6.)

For the sake of argument, suppose that it appeared from the record of the Probate Court that this claim was actually barred by the statute of limitations, but that the administrator Parks had failed to plead it; even then we contend that he cannot take advantage of that fact now.

Orrick, for defendant in error.

I. A writ of error from the Circuit Court to the County Court, in probate matters, is a proper and legitimate proceeding. The exception in the statute is intended to qualify the issuing of the writ, in probate cases only, as to the time limited, and not as to the general authority to issue it. The general object of the section is to limit the time to ninety days. The exception merely takes out of that limitation such writs as belong to probate matters, and as to them leaves the time unlimited. (R. C. 55, p. 1295, § 2.)

The writ of error is a common law writ, and requires no special statute in this state to give it vitality; it is a necessary incident to the relation of a superior court to an inferior and subordinate one, provided only that they both be courts of record. (Mo. State Constitution; R. C. 1855, p. 77, § 8; Rankin v. Perry, 5 Mo. 501; Gamble v. Hamilton, 7 Mo. 469-471; Evans v. Adams, 3 Green, 373; Smith v. Pratt, 13 Ohio, 548; Allen v. The Mayor, &c. 9 Geo. 286; Green v. Whiting, 1 Smedes & M. 579; Lynes v. The State, 5 Port. 236; Lansford v. Richardson, 5 Ala. 618; Bank of U. S. v. Patton, 5 How. Miss. 200.)

II. As to the admissibility of the evidence introduced by defendant in error, it does not appear, from the bill of exceptions what were the grounds of objections raised by plaintiff in error, and this court, therefore, will not review them. (Krippen v. Bechtner, 32 Mo. 255; Weston & P. R.R. Co. v. Cox, 32 Mo. 456.)

III. The forms of entry in the County Court do not admit the conclusion that the defendant in error failed to plead the three years statute in the C...