Sauer v. Griffin

• Decision Date: 30 April 1878
• Citation: 67 Mo. 654
• Parties: SAUER v. GRIFFIN et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 654

SAUER

v.GRIFFIN et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Jackson Circuit Court.--HON. SAMUEL L. SAWYER, Judge.

M. D. Trefren for appellants.

Wm. E. Sheffield for respondent.

HOUGH, J.

This was a suit against the widow and minor child of one James H. Welch on a certain appeal bond, on which said Welch was surety. An agreed statement, or abstract of the record, has been filed, reciting the following facts: “James H. Welch, with others, in his life-time--to-wit, on the 24th day of June, 1870-- became surety upon an appeal bond given in the case of the Kansas City Hotel Company, of Kansas City, Mo., against Joseph Seigmunt, wherein judgment had been rendered in the Kansas City court of common pleas, binding himself, his heirs, executors and administrators in the sum of $2,200, and conditioned that if said Seigmunt would prosecute his appeal from said judgment in said bond named with due diligence to a decision in the Supreme Court, and perform such judgments as the Supreme Court might give or direct the Kansas City court of common pleas to give, and if such judgment should be affirmed that he would comply with and perform the same, and would pay all damages and costs which might be awarded against him in the Supreme Court, then said bond to be void, otherwise to remain in full force; which said bond was duly approved and filed in said Kansas City court of common pleas; that said judgment in said cause was afterwards, at the July term, 1873, of the Supreme Court, duly affirmed; that said Seigmunt wholly neglected to pay or perform such judgment; that afterwards, on the 23rd day of November, 1873, the said Kansas City Hotel Company duly sold and assigned said judgment to said Sauer, and also at the same time assigned and transferred said appeal bond to him, whereby he, said Sauer, became the legal holder thereof and entitled to enforce the same; that said James H. Welch died about the 1st day of January, 1871, at Kansas City, in said county; that defendant Martha Barnum was his widow, and defendant Emma Welch was his minor child, and that Frank Barnum, afterwards and before the commencement of this suit, married the said Martha, widow of the said James H. Welch, deceased; that said Martha Barnum, formerly Welch, and the said Emma Welch were the sole heirs of said James H. Welch, deceased; that said James H. Welch died seized of an estate of about $30,000, principally real estate; that he was possessed of no personal estate, except what was afterwards set apart to his widow by the probate court of Jackson county as her separate property; that said James H. Welch, by his last will and testament, duly probated in said probate court of Jackson county, devised all his real estate to his widow, Martha Welch, now Barnum, subject only to the payment of a legacy of $500 to his daughter, the said Emma Welch; that the real estate so devised was the same described in the petition and judgment in this cause; that on the 28th day of March, 1871, letters of administration, with the will annexed--on the estate of said James H. Welch were duly granted to said Martha Barnum, then Martha Welch, by the probate court of Jackson county, and that she was duly qualified, and took possession of the estate of said James H. Welch, and still retains possession of the same; that as such administratrix she settled up the affairs of said estate, paying all debts then owing by said estate, and was on the 19th day of May, 1873, by said probate court duly discharged; that the judgment of affirmance in said case by the Supreme Court was not rendered until after the final settlement and discharge of the said Martha as administratrix as aforesaid; that there was no personal estate whatever belonging to said estate at the time of such final settlement and discharge; that the amount due on said judgment against said Seigmunt at the time the judgment was rendered in this cause was $1,272.55; that the judgment rendered in this cause was for the amount of penalty of bond, to be satisfied by the payment of the said sum of $1,272.55, with interest at six per cent.; said sum to be paid within sixty days after the rendering of the judgment herein by defendants, or, in default of such payment, then the real estate devised to said Martha, or so much thereof as might be necessary, be sold to satisfy said damages, interests and costs, and that plaintiff have execution therefor.”

1. APPEAL BOND: surety: administration.

It is argued by the appellants that the plaintiff had an adequate remedy at law, and, as he neglected to present his claim to the probate court for allowance, a court of equity will not interfere to help him now. The case of Titterington v. Hooker, 58 Mo. 593, is cited in support of this position. That case is wholly unlike the present. What was there said in regard to the exclusive jurisdiction of the probate court related to claims existing at the decedent's death. Here there was no claim which could have been presented for allowance during the existence of the administration. There was an obligation, it is true, out of which...