Overton v. McFarland

• Decision Date: 31 October 1851
• Citation: 15 Mo. 312
• Parties: OVERTON, ADM'X OF OVERTON, v. MCFARLAND, ADM'R OF MCFARLAND.
• Court: Missouri Supreme Court

15 Mo. 312

OVERTON, ADM'X OF OVERTON,

v.MCFARLAND, ADM'R OF MCFARLAND.

Supreme Court of Missouri.

October Term, 1851.

ERROR TO NEW MADRID CIRCUIT COURT.

COOK, for Plaintiff. The only point decided by the Circuit Court was that of jurisdiction; any formal defect in the petition will not be considered here. It is submitted by the plaintiff that chancery has jurisdiction in such cases, and that the jurisdiction of the County Court as given by statute is accumulative and summary, and is not exclusive. State Constitution, art. 5, §§ 6, 8; 5 Mo. R. 569, Erwin v. Henry.

GLOVER, for Defendant. The demurrer was properly sustained; the Circuit Court, having no jurisdiction of the subject matter of the plaintiff's petition. See Rev. Code 1845, p. 332, § 14. The petition in this case shows no impediment whatever in the way of the action of the County Court, and no necessity for the action of the Chancellor. Davis v. Davis, 4 Mo. R. 206; 5 Mo. R. 183. It is true that in Erwin v. Henry, 5 Mo. R. 469, it was held that the power here claimed belongs to the Circuit Court but the authority of that case has been overruled by the more recent decision of Miller v. Woodward, 8 Mo. R. 169.

GAMBLE, J.

The plaintiff in error filed a petition in the Circuit Court of New Madrid, alleging that her intestate, Benjamin P. Overton, in his life-time, recovered a judgment in the Circuit Court of New Madrid against Elias G. McFarland, the intestate of the defendant in error, that the defendant, James A. McFarland, administered upon the estate of Elias and returned an inventory of the effects of his intestate, amounting only to the sum of $88 50, although the administrator then had in his own hands several slaves and other personal property belonging to his intestate's estate, worth more than $2,000, a part of which he had subsequently sold. The petition prays that an order may be made requiring the defendant to inventory and account for so much of said property as remained in his hands, as assets of his intestate, and that he account for the proceeds of such part as he has sold, and that he be enjoined from selling any more.

An amendment was made to the petition or rather an addition to its prayer, in which the petition prays that the defendant may be required to discover the title under which he claims the property and refuses to return it in his inventory; and if he claims it as his own property, that he discover and set forth the consideration given by him on the purchase thereof--that he set forth whether he was not indebted to his intestate, and generally, that he discover all the assets of his intestate.

A demurrer was filed to the petition, and the defendant assigned for cause, that the Circuit Court had no jurisdiction of the subject matter of the action. The demurrer was sustained and the petition dismissed, and the cause comes before this court to determine the question of the jurisdiction of the Circuit Court.

It is to be inferred from the petition, that the administration upon McFarland's estate is still an open, unsettled administration, as the petitioner seeks to have property inventoried by the administrator as property of the estate and accounted for as such. He does not ask that this shall be done in the Circuit Court but invokes the aid of the Circuit Court in order that it may be done in the County Court.

If the power here claimed for the Circuit Court, will, in any degree, interfere with the exclusive original jurisdiction, expressly conferred by the Legislature upon the County Courts, it cannot be exercised. Although the sixth subdivision of the sixth section of the act establishing Courts, Rev. Code, 330, gives to the Circuit Courts “a general...