Shearer v. Parker

• Citation: 364 Mo. 723,267 S.W.2d 18
• Decision Date: 12 April 1954
• Docket Number: No. 43697,No. 1,43697,1
• Parties: SHEARER v. PARKER
• Court: United States State Supreme Court of Missouri

Page 18

267 S.W.2d 18

364 Mo. 723

SHEARER v. PARKER.

No. 43697.

Supreme Court of Missouri, Division No. 1.

April 12, 1954.

Edward L. Higbee, Denver, Colo., Watkins & Watkins and Fred M. Wanger, St. Joseph, for appellant.

Maurice Pope, St. Joseph, for respondent.

CONKLING, Judge.

This action originated in the Probate Court of Buchanan County by the filing there of a demand against the estate of Charles H. Parker, deceased. The above demand was filed by Lowell G. Shearer (hereinafter called plaintiff), as administrator with the will annexed of the estate of Sarah A. Parker, against defendant Sylvia M. Parker, executrix of the estate of the above deceased, Charles H. Parker. In the Buchanan County probate court plaintiff's demand was allowed as a claim against the estate of Charles H. Parker in the sum of $13,902.06. From that allowance and judgment defendant appealed to the Circuit Court of Buchanan County, where the judgment of the probate court was reversed. Thereupon plaintiff appealed here.

The case was tried to the court without a jury upon the following agreed statement of facts: On December 14, 1920, the above named Charles H. Parker, then a resident of Colorado, upon his sworn application to be so named, was appointed administrator with the will annexed of the estate of Sarah A. Parker, by the County Court of Routt County, Colorado, a court of probate jurisdiction and a court of record. Thereupon, Charles H. Parker took charge of the assets of that Colorado estate and made and filed a personal property inventory therein of $5,631.43. In 1924 Charles H. Parker removed from the State of Colorado without completing that administration, without being discharged as such administrator and without accounting for the assets of that estate. Thereafter, a legatee under Sarah A. Parker's will, who was only seven years of age when the administration of that estate was begun, filed a petition in the County Court of Routt County, Colorado. In that petition it was charged that Charles H. Parker had left Colorado without paying the legacies or making any accounting. It was also charged therein that Charles H. Parker had fraudulently caused claims to be allowed against the estate and in favor of Charles H. Parker and his wife, Sylvia M. Parker. That petition prayed that Charles H. Parker be cited to appear in the County Court of Routt County and render an accounting. As a second claim for relief that petition prayed that Colorado court to require Charles H. Parker to appear therein and show cause why his letters should not be revoked and his letters granted to some other person. Charles H. Parker was thereupon notified by registered mail of the filing of the above petition and by such mail received the petition, summons and citation, and was also served personally with a summons and citation in Buchanan County, Missouri.

Charles H. Parker, through his attorney, F. V. Worden, of St. Joseph, Missouri, thereupon acknowledged by letter to the clerk of the County Court of Routt County, Colorado, that he had received the 'Summons to Administer' and the 'Citation to Administer' in the Sarah A. Parker estate matter, and noted in his letter to the clerk that the cause was set for hearing in that Colorado court on January 19, 1950, at 10:00 o'clock A.M. Charles H. Parker made no further appearance in the Colorado court, either in person or by attorney, and filed no answer therein. The Colorado court proceeded to hear the matter and thereafter entered its judgment therein. Its judgment found that Charles H. Parker had personal notice of the proceedings by registered mail and was personally served with petition, summons and citation by the sheriff of Buchanan County, Missouri, and that the statutory period after service of summons had elapsed; found also from the evidence that Charles H. Parker had been guilty of gross neglect and violation of duties, had failed to file his reports had accountings required by law, had failed to properly manage and conserve the estate and pay the legacies of this will, had filed in the court and had had allowed certain personal claims against the estate without having some disinterested person appear and resist such claims as required by law, and that he had left and departed from Colorado without advising the court or surrendering the estate assets, all contrary to Colorado law.

The court also found that the petitioning legatee had never been paid his legacy, was an infant of insufficient age to have received notice of the probate of Sarah A. Parker's will, and in fact had no notice of his legacy until October, 1948, and had thereafter acted with due diligence to protect his rights. The Colorado court also found that Charles H. Parker departed from Colorado and had concealed himself 'since prior to the 8th day of February 1925'; and found also that the court '* * * has, and has had since the appointment on the 14th day of December, 1920, of the said Charles H. Parker to be Administrator-With-The-Will-Annexed, jurisdiction over the person of the said Charles H. Parker, notwithstanding his departure from the State of Colorado.' The court also found plaintiff herein to be a qualified and proper person to act as administrator with the will annexed of the estate of Sarah A. Parker, and found that estate to be insolvent and without funds or assets, other than such assets as may be recovered from Charles H. Parker.

The Colorado court thereupon decreed the revocation of the former letters of administration to Charles H. Parker, and the latter's fraud, misconduct, default and failure to account as above for assets in his possession, appointed the instant plaintiff the administrator with the will annexed of the Sarah A. Parker estate, and on the same day (February 23, 1950) in a separate judgment, upon like findings and decrees, and after allowance of all proper credits,

The above Colorado judgment for administrator with the will annexed and against Charles H. Parker in the sum of $5,073.75 and also for $8,828.31 interest, a total of $13,902.06.

The above Colorado judgment of $13.902.06 was thereafter, in form required by Section 490.130 RSMo 1949, V.A.M.S., and 28 U.S.C.A. Sec. 1738, filed in the Probate Court of Buchanan County, Missouri, as the basis of the demand there filed by plaintiff against the estate of Charles H. Parker, and mentioned above in the first paragraph.

In its judgment instantly appealed from, the circuit court of Buchanan County ruled that the Colorado judgment for $13,902.06 based upon the above agreed facts, was one 'in personam and that as a judgment in personam the service was improper and a violation of due process.'

The plaintiff here contends (1) that the jurisdiction of the County Court of Routt County, Colorado, over the Sarah A. Parker estate and over the person of Charles H. Parker, continues so long as the estate remains open and until Charles H. Parker should be discharged after complete administration, and that the original jurisdiction of that court continues throughout all subsequent proceedings arising out of the original action, (2) that the trial court erred in holding that the Colorado judgment violated due process because the continuing jurisdiction of that court warranted the judgment here sued on even though, at the time of its entry, Charles H. Parker was not in Colorado, was not personally served in that state and did not appear, and (3) that the Colorado judgment is entitled to full faith and credit in Missouri, Section 490.130 and Section 1, Article 4, United States Constitution, and its correctness is not open to question in this proceeding.

Defendant-respondent here contends that (1) at the time of the Colorado judgment no res was present in Colorado and this proceeding therefore is not one in rem, and (2) that the Colorado judgment is not entitled to full faith and credit in Missouri because it was rendered in an action in personam, was a judgment in personam, was entered against a non-resident of Colorado who was outside the state, who was not personally served within the state and did not appear in court.

From the agreed statement of facts, and from the Colorado statutes, it appears that the Colorado statutes, (1) gave the County Court of Routt County, Colorado, power to revoke letters if an administrator removed from the state or refused or neglected to perform his duty; (2) provide that that court should summon an administrator charged to be in default to appear within ten days after service of summons and show cause why such revocation order should not be made; (3) provide under above circumstances that if the summons upon the defaulting administrator could not be personally served within the state, that the same could be served by registered mail; (4) provide that upon removal of an administrator the thereafter appointed administrator shall have judgment for the assets and shall have and maintain an action against the former and removed administrator for the assets of the estate which the former had and for which he did not account, and gave the court power to compel the removed administrator to deliver such assets; (5) provide that administrators shall make settlements and accountings in the court of their appointment every six months, or oftener if required, until the duties of the administration are fully completed, and gave the court power to compel such settlements under penalties, and provide that an administrator's failure or refusal to pay over assets 'shall be deemed and taken in law to amount to a devastavit' which shall authorize a recovery thereof; and (6) provide that process may be served in another state by a sheriff. See Volume 4, Colorado Statutes Annotated, Chapter 176, Secs. 90, 91, 93, 136, 154, 217, 220, 231, 242, 253, and Colorado Rules of Civil Procedure, Rule 4. Rule 4(f)(2) provides for service outside the state on non-resident defendants in actions in rem.

We consider first the character of the...