Roethlisberger v. Caspari

• Citation: 12 Mo.App. 514
• Parties: ROETHLISBERGER & GERBER, Plaintiffs in Error, v. ROSALIE CASPARI, ADMINISTRATRIX, Defendant in Error.
• Decision Date: 28 October 1882
• Court: Missouri Court of Appeals

12 Mo.App. 514

ROETHLISBERGER & GERBER, Plaintiffs in Error,

v.ROSALIE CASPARI, ADMINISTRATRIX, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Oct. 28, 1882.

1. In the absence of exceptions taken, all presumptions are in favor of the action of the trial court.

2. The notice of demand against an estate required to be given to the administrator must contain a detailed statement of the account to be presented for allowance.

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

Affirmed.

DAVENPORT & NAPTON, for the plaintiffs in error.

C. A. SCHNAKE, for the defendant in error.

LEWIS, P. J., delivered the opinion of the court.

The plaintiffs caused to be served on the defendant administratrix a notice, as follows:--

“To Rosalie Caspari, administratrix of the estate of John S. Caspari, deceased:--

Take notice, that on the first day of the next March term of the probate court, being on the first Monday of March, 1880, held in and for the city of St. Louis and state of Missouri, or as soon thereafter as I can be heard, I shall present for allowance against the estate of John S. Caspari, deceased, a claim for the sum of three hundred and sixty dollars and thirty-six cents ($360.36), founded upon an account of which the following is a copy:--

Estate of John S. Caspari, Dr.

To Roethlisberger & Gerber, New York.

To Mdse.

$720 71

Cr. of dividend of fifty per cent

360 35

Bal. due.

$360 36”

The defendant made no appearance in the probate court, where a default was taken, and the demand was allowed, in the fifth class. The defendant appealed to the circuit court, where judgment was given in her favor.

The record shows no exceptions taken by the plaintiffs to specific rulings of the court, except as to its refusal to grant a new trial. Under these circumstances, all presumptions are in favor of correctness in the court's views of legal questions involved, and of such findings upon questions of fact as, in accordance with those views, would sustain the judgment. O'Neil v. St. Louis, 8 Mo. App. 416. An application of this rule would suffice for an affirmance of the judgment in the present case. But there are other reasons for the same conclusion, which may be more satisfactory.

By the Revised Statutes (sect. 198), a party desiring to procure an allowance of his demand against the estate of a deceased person, must “deliver to the executor or administrator a written notice, containing a copy of the instrument of writing, or account on which it is founded,” etc. Was the paper furnished to the administratrix, in this instance, a copy of an account, within the meaning of the provision? We think not.

The mechanics' lien law required the plaintiffs in McWilliams v. Allan (45 Mo. 573), to file a “just and true account of the demand due them, after all just credits had been given.”

The plaintiff thought that this required nothing more than a fair and explicit statement of the balance due them, and on what account. Such a statement they...