Scott v. Crider

• Decision Date: 05 May 1925
• Citation: 272 S.W. 1010,217 Mo.App. 1
• Parties: LEO P. SCOTT, Plaintiff, v. ANTOINETTE CRIDER, Administratrix of the Estate of MARCELLA EMERSON, Deceased, Defendant-Respondent, ANNIE CREECH, KATE CREECH, EFFIE CREECH, RUTH DAY and MRS. GEORGE WILKINSON, Movants-Appellants. *
• Court: Missouri Court of Appeals

272 S.W. 1010

217 Mo.App. 1

LEO P. SCOTT, Plaintiff, v. ANTOINETTE CRIDER, Administratrix of the Estate of MARCELLA EMERSON, Deceased, Defendant-Respondent, ANNIE CREECH, KATE CREECH, EFFIE CREECH, RUTH DAY and MRS. GEORGE WILKINSON, Movants-Appellants. *

Court of Appeals of Missouri, St. Louis

May 5, 1925

Appeal from the Circuit Court of St. Charles County.--Hon. E. B Woolfolk, Judge.

AFFIRMED.

Judgment affirmed.

Taylor R. Young for appellants.

Emil P Rosenberger for plaintiff.

(1) The affidavit for an appeal filed in the circuit court is insufficient to give this court jurisdiction of this appeal. (2) At most, there is nothing for this court to review except the record proper because appellants' abstract of the record fails to show that any bill of exceptions was ever filed. (3) The motion filed by appellants to set aside plaintiff's judgment is not a part of the record proper and is not preserved in the bill of exceptions, hence, at most, there is nothing for this court to review except the record proper, and appellants are not entitled to have the order of the court overruling the motion complained of reviewed by this court. Bank of Dexter v. Stoddard County Bank, 169 Mo. 74; Graff v. Dougherty, 120 S.W 661, 139 Mo.App. 56; Pickle v. Pickle, 159 S.W. 74, 176 Mo. 673; Poncot v. St. Louis & Iron Mt. & Southern Ry., 161 S.W. 1190, 176 App. 225. (4) (a) The movants mistook their remedy. They should have filed their motion in the probate court instead of in the circuit court under section 211, R. S. 1919, to set plaintiff's allowance aside. Keele v. Keele, 118 Mo.App. 262, 94 S.W. 775. (b) But movants did not give any notice to plaintiff of the filing of their motion to set aside plaintiff's judgment or allowance, and the circuit court had no jurisdiction, without notice to plaintiff, to set his judgment aside, and this court, cannot acquire such jurisdiction on appeal. Caldwell v. Lockridge, 9 Mo. 358; Aull v. Trust Co., 149 Mo. 14; Ault v. Bradley, 191 Mo. 709. (5) The right to an appeal is purely statutory, and unless section 1469, R. S. 1919, gives such right appellants have no standing in this court. Creech et al. v. Young, 94 Mo. 90, 67 S.W. 963; Tamblyn v. Chicago Lead & Zinc Co., 161 Mo.App. 296, 143 S.W. 1093; State ex rel. Fuemler v. Goldstein, 237 S.W. 814, 209 Mo.App. 102; Lowe v. Fredde, 258 Mo. 208, 167 S.W. 443; Bona nomi v. Purcell, 287 Mo. 436, 230 S.W. 120. (6) (a) An administrator represents the creditors as well as the heirs in collecting debts and prosecuting and defending claims. Perkins v. Goddin, 111 Mo.App. 440. (b) An executor stands in the position of a trustee and enjoys like powers and incurs like liabilities. Hill v. Evans, 91 S.W. 1022, 114 Mo.App. 715-722. (c) Unquestionably executors and administrators may, with the consent of the probate court, compromise disputed claims in which the estate is the claimant. Sec. 233, R. S. 1919; Jacobs v. Jacobs, 99 Mo. 427; Jefferies, Admr., v. Mutual Life Ins. Co., 110 U.S. 305. (d) The same rule holds good in case of a claim being presented against an estate. 3 Schouler on Wills & Executors (6 Ed.), sec. 2644; In re Estate of Christina Hesche, dec'd, 73 Mo.App. 612; In re Jarboe's Est., 227 Mo. 591, 127 S.W. 26; Lakes, Admr., v. Pattie et al., 81 S.E. 78; Brown & Bros. v. Brown et al., 14 A. 718; Powell v. Meyers, Exr., 21 N.C. 502; Bennett and Wife v. Folmer, 49 Penn. St. Rep. 155; Scully v. Scully, 201 N.Y. 61; Dunn v. Wallingford, 155 P. 350. (7) An action will in all cases lie upon a contingent note on proof of the happening of the contingency, and after the contingency has happened it may be declared on as a note. 1 Randolph on Commercial Paper (2 Ed.), par. 95; Crow v. Hamon, 25 Mo. 417; Kessler v. Clayes, 147 Mo.App. 88; Robbins v. Robbins Est., 175 Mo.App. 609; McGehee v. Childress, 2nd Stew. 506; Williams v. Smith, 3 Ill. 524; Congregational Society v. Goddard, 7 N.H. 430; Nagle v. Homer, 8 Cal. 353; Hatch v. Gillette, 40 N.Y.S. 1016; Miller's Exrs. v. Western College of Toledo, 42 L. R. A. 797; Stout v. Watson, 48 N.W. 195; Halstead v. Ryan, 57 P. 852.

Charles J. Daudt and B. H. Dyer for respondent.

(1) The appeal in this case is without merit and the case not entitled to review in this court, because the appeal was not taken from the final judgment in the case, but from the court's order overruling movants' motion to set aside that judgment. The statute, R. S. 1919, section 1469, allows an appeal from any order granting a new trial, but not from an order refusing a new trial. Lowe v. Friede, 157 Mo.App. 69, 572; Lowe v. Friede, 258 Mo. 208, 210, 211. (2) The judgment below should be affirmed, because the abstract of the record fails to show that the bill of exceptions was filed and made a part of the record. No record entry of the circuit court showing the filing of a bill of exceptions or order making it a part of the record in the case is set out in the abstract of the record. In this State of the record there is nothing for this court to review but the record proper. Hayes v. Foos, 223 Mo. 421; Hutson v. Allen, 236 Mo. 645; Atlas Cereal Co. v. Griffin, 259 S.W. 130; Kampf v. St. L. Transit Co., 102 Mo.App. 314. (3) Movants' motion, filed August 9, 1923, asking the court to set aside the judgment in favor of plaintiff rendered June 11, 1923, was never incorporated or preserved in the bill of exceptions and made a part of the record in the case, for which reason the order of the court in overruling the same is not the subject of review in this court. (4) The judgment below should be affirmed, because no motion for a new trial by the movants was noted, copied, shown or preserved by a bill of exceptions in this case, nor is there any showing in a bill of exceptions that an exception was saved to a ruling of the court overruling such a motion. (5) The motion of movants to set aside the judgment in plaintiff's favor of June 11, 1923, was not filed within four days after said judgment was rendered. (6) (a) The motion of movants to set aside the judgment in favor of plaintiff of June 11, 1923, does not state facts clearly showing that a serious injustice has been done or a fraud perpetrated by means of that judgment. (b) No notice of the filing of said motion or of movants' intention to file or present the same was given to the plaintiff in the judgment, nor did said plaintiff appear to the proceedings on said motion, and hence the circuit court had no jurisdiction to set aside said judgment as moved for by movants, and any order sustaining said motion would have been void. While a court may set aside, amend or modify its judgments during the term at which they are rendered, it has been clearly settled that this power can be lawfully exercised only upon due notice to the party whose rights are to be affected. Caldwell v. Lockridge, 9 Mo. 358; Aull v. Trust Co., 149 Mo. 1; Ault v. Bradley, 191 Mo. 709; Laughlin v. Fairbanks, 8 Mo. 367; State v. Biesemeyer, 136 Mo.App. 668; Parker v. Johnson, 22 Mo.App. 576; Railroad v. County, 55 Mo. 162; Curfman v. Deposit Co., 167 Mo.App. 507; Laun v. Ponath, 91 Mo.App. 271. (7) The motion of movants to set aside the judgment rendered between the parties on June 11, 1923, was at best an appeal to the sound discretion of the trial court. That court's action will not be interfered with by an appellate court, except upon a clear showing that its discretion was abused or arbitrarily exercised to the serious injury or deprivation of the appellants. (8) (a) While the notes given by Marcella Emerson to Lizzie Crider and Leo P. Scott, respectively, and which are the basis of the judgments complained of, may not be negotiable promissory notes under our Negotiable Instruments Act or under the law Merchant, they do, by mandate of an express statute, long in force in this State, import a consideration and are due and payable as therein specified. R. S. 1919, sec. 2160; Lindell v. Rokes, 60 Mo. 249; Hempler v. Schneider, 17 Mo. 258; Wulze v. Schafer, 37 Mo.App. 551; Skinner v. Skinner's Exr., 77 Mo. 148; Caples v. Branham, 20 Mo. 244; Hauck v. Frisbe, 66 Mo.App. 16; Hoffman v. Trust Co., 68 Mo.App. 177; Locker v. Kuechenmeister, 120 Mo.App. 701. (b) In the face of a showing that the payees in those notes had rendered services to the maker thereof, it is doubtful, to say the least, whether the administratrix could lawfully show that the actual value of the services rendered were less than the amount specified in the notes and claim a partial failure of consideration, as the maker of the note specified the value of the services and the amount was acceptable to the payees, the instruments themselves importing a consideration and being made payable as therein specified. Hempler v. Schneider, 17 Mo. 258; Wirt v. Schuman, 67 Mo.App. 163; Brown v. Weldon, 27 Mo.App. 251. (c) While the administratrix contended that these instruments were testamentary in character and void for that reason, the probate court found against that contention, and, in the light of the adjudicated cases, it is by no means certain that she could have defeated recovery on that ground. Wood v. Flannery, 89 Mo.App. 632; Maze v. Baird, 89 Mo.App. 348; Robbins v. Robbins Est., 175 Mo.App. 609; Campbell v. Thompson, 192 Ill.App. 416; 8 Corpus Juris 118. (9) The validity of the judgment in favor of plaintiff is questioned by movants on the ground of fraud. It is elementary law that in such an attack: (a) The facts constituting the fraud be distinctly alleged and clearly proven. (b) And the fraud must consist in the procurement of the judgment. The movants failed to meet any of these requirements.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.

Appellants here filed a motion in the circuit court to be made parties defendant in the case and to set...