Skelly v. The MaCcabees

• Decision Date: 13 May 1925
• Parties: ESTA M. SKELLY, Respondent, v. THE MACCABEES, Appellant. *
• Court: Missouri Court of Appeals

272 S.W. 1089

217 Mo.App. 333

ESTA M. SKELLY, Respondent, v. THE MACCABEES, Appellant. *

Court of Appeals of Missouri, Springfield

May 13, 1925

Appeal from the Circuit Court of Jasper County.--Hon. Grant Emerson Judge.

AFFIRMED.

Judgment affirmed.

R. P. & C. B. Williams and John E. Owen, all of St. Louis, for appellant.

(1) The five hundred dollars due on the certificate at the time the same was paid to Mrs. Beatrice Skelly, as guardian, was due to the member Raphael Clay Skelly and the plaintiff had no interest therein and cannot complain that the amount was paid to Beatrice Skelly, as guardian, or otherwise, for the benefit of the member. Ryan v. W. B. A. of M., 209 Mo.App. 515-521; Secs. 6403, 6433, R. S. 1919. (2) Mrs Beatrice Skelly, as the guardian of Raphael Clay Skelly received from the defendant five hundred ($ 500) dollars due on the certificate and expended the same for the benefit of Raphael Clay Skelly. The same should be credited on the one thousand dollars ($ 1,000) provided in the certificate, whether the appointment as such guardian was void or not. By the receipt of the money and the payment thereof for the benefit of the member, she became a quasi-guardian, a guardian de son tort or a de facto guardian, as held by the different courts. Seideman v. Molasky, 118 Mo.App. 106-114; Spetina v. Bernstein, 204 Mo.App. 366; Bank v. Shanklin, 174 Mo.App. 639-645; Johnson v. Smith, 27 Mo. 591; Werner's American Law of Guardianship, p. 76, in re Gilfillan Estate, 170 Pa. 185, 32 A. 585; Smith v. Camerson, 158 Mich. 175, 122 N.W. 564; Corbitt v. Carroll, 50 Ala. 315; Bailey v. Bailey, 67 Vt. 494. 32 A. 470. (3) The plaintiff having known of the appointment of the guardian of the person and estate of Raphael Clay Skelly, and having received a portion of the funds in payment of a claim against the insane person, and having known that the fund was paid to others, would not now be allowed to challenge the legality of the payment by defendant of the five hundred dollars $ 500) to Beatrice Skelly. (4) The money being justly due from defendant to Raphael Clay Skelly under the terms of the certificate, and the same having been paid to Beatrice Skelly, as guardian, for the benefit of the member, he or his personal representative would be the only ones who could complain against said payment and call upon the person to account as quasi-guardian or de facto guardian. Bailey v. Bailey, 67 Vt. 494, 32 A. 470; Also authorities cited under paragraph two.

Claud Kenney and Owen & Davis, all of Joplin, for respondent.

(1) Appellant attempts to justify the payment of the five hundred dollars to Beatrice Skelly on the grounds, to-wit: (1) that she was, at the time of the payment of said sum to her, the duly appointed, qualified and acting guardian of the person and the curator of the estate of, Raphael Clay Skelly; (2) that she was a quasi-guardian, or guardian de son tort, or guardian de facto of said Raphael Clay Skelly, if not guardian de jure, and that it therefore had the legal right to pay to her said sum; (3) and that plaintiff had full knowledge of the claim made upon the defendant by Beatrice Skelly for said five hundred dollars and the payment thereof to her for his benefit, and for the benefit of his wife and child. Plaintiff, on the other hand, contends that the payment of said five hundred dollars to Beatrice Skelly cannot be upheld under any theory, and that it was wholly unauthorized. (2) Section 446, R. S. 1919, provides that the party under investigation, and who is sought to be placed under guardianship, must be notified of the proceedings. The notice required by said section must be in writing and must be served upon the party under investigation by an officer authorized to serve a summons. Such notice is jurisdictional, and takes the place of and corresponds to the summons in an ordinary civil action. State ex rel. v. Duncan, 195 Mo.App. 551; State ex rel. v. Robinson, 270 Mo. 212, 223-229; Hunt v. Searcy, 167 Mo. 158; Crow v. Myersieck, 88 Mo. 411; 32 Cyc. 453. (3) Service of notice by a private person under section 1217, R. S. 1919, refers only to notices which may be served after a party has been brought into court, and not a notice which takes the place of and performs the office of a summons. State ex rel. v. Robinson, 270 Mo. 226; Wilson v. Ry. Co., 108 Mo. 594, 595. (4) Service of notice not in accordance with the law is a nullity, and brings no one into court. State ex rel. v. Robinson, 270 Mo. 228; Wilson v. Ry. Co., 108 Mo. 595; 36 Cyc. 453. (5) And mere knowledge of the inquisition proceedings by Skelly did not give the court jurisdiction over his person. Miners' Bank v. Kingston, 204 Mo. 687. (6) The return to the citation served upon Skelly purports to have been made by reading same to him and by delivering to him a copy thereof, on September 19, 1922, by Mary Blanche Moss. The citation is not directed to any officer, and the return does not purport to be made by an officer. However, the evidence in the case shows that Mary Blanche Moss was a private person, a Red Cross nurse. Under the authorities above cited, the service was a nullity and the court, therefore, had no jurisdiction over the person of Skelly, and the judgment of inquisition is void, as held in the above cases. The judgment of inquisition, which was read in evidence recites that Raphael Clay Skelly's mental condition was such that he could not be brought before the court, and that his attendance at the investigation was, therefore, dispensed with, and that George Crowder, attorney, appeared for the insured. It is not contended that Skelly appeared by George Crowder, attorney. However, the evidence in the case shows that the probate court appointed Mr. Crowder, as provided by statute, to appear for Skelly. No objection was made to this evidence, and none could have been legally made to its introduction. All that part of the statute which permits and authorizes the court to appoint a guardian, after having spread upon the record the reasons why notice was not given, does not constitute due process of law, and is void; and likewise the appointment and appearance of an attorney to represent the person whose sanity is under investigation does not constitute due process of law. Shanklin v. Boyce, 275 Mo. 5; Hunt v. Searcy, 167 Mo. 158. (7) The judgment of inquisition being null and void for want of jurisdiction over the person of the insured, its validity was subject to collateral attack by plaintiff. 1 Black on Judg., sec. 220; 23 Cyc. 1068, 1070; McIntyre v. Frisco Ry. Co., 286 Mo. 246; Russell v. Grant, 122 Mo. 161; Kellogg v. Moore, 271 Mo. 189; Park v. Gibson, 268 Mo. 394; Adams v. Cowles, 95 Mo. 507; Hendrix v. Hendrix, 103 Mo.App. 44; Potter v. Whitten, 161 Mo.App. 118. (8) Even, in actions in rem, such as attachment suits, the court must have jurisdiction over the person of the defendant, or the judgment will be null and void, and can be attacked collaterally. Graves v. Smith, 278 Mo. 592; Givens v. Harlow, 251 Mo. 243; Shea v. Shea, 154 Mo. 599, 145 Mo.App. 158. (9) If this suit was one by the executor or administrator of the insured against Beatrice Skelly for money had and received by her for his use and benefit, or for an accounting, the cases cited by appellant would be decisive of the right of the plaintiff, in such suit, to recover; but that is not this case. No one questions the right of A to sue B for money had and received to the use of A, or to sue for an accounting, if B, whether rightfully or wrongfully, collects money due to, or rightfully belonging to, A. That is all that is decided in the cases cited in brief of appellant. If Raphael Clay Skelly had not died, his guardian de jure could have sued and recovered of defendant the five hundred dollars paid to Beatrice Skelly, notwithstanding defendant, in good faith, had paid the same to Beatrice Skelly, and notwithstanding she may have expended it in good faith for his benefit. Defendant, by its contract with the insured, agreed to pay to him, under certain specified circumstances or conditions the one-half of the amount of the certificate of insurance, and not that it would, under said circumstances or conditions, pay the one-half for his use and benefit. (10) The answer of the defendant does not plead facts sufficient to constitute an estoppel in pais against the plaintiff, and that defense is therefore not available to the defendant. It is a well-understood rule in this State that, in order for an estoppel in pais to constitute a defense, the facts showing such estoppel must be pleaded. Gillen v. Ins. Co., 178 Mo.App. 89, 106; Dibert v. D'Arcy, 248 Mo. 617, 661; Telephone Co. v. St. Louis, 268 Mo. 485, 498; Thompson v. Lindsay, 242 Mo. 53, 76; Grooms v. Morrison, 249 Mo. 550. (11) It is elementary learning that the party relying upon equitable estoppel must have been misled to his injury by reason of the conduct of the party, or by reason of some representation or statement made by the party, against whom the estoppel is asserted. Trust Co. v. Keck, 283 Mo. 209, 223; Matthews v. VanCleve, 282 Mo. 19; Pouder v. Colvin, 170 Mo.App. 185, 194; DeLashmutt v. Teetor, 261 Mo. 412; Thompson v. Lindsay, 242 Mo. 53, 76. (12) Furthermore, the evidence shows that plaintiff had no knowledge or information of the application of Beatrice Skelly for the payment of said $ 500 to her and the payment thereof to her until after she mailed to defendant proofs of the death of the insured, at which time she learned for the first time of said application and the payment of said $ 500 to Beatrice Skelly. (13) It is a well-understood rule of law that the party sought to be estopped by conduct must have had, at the time of the transaction claimed to constitute the estoppel, knowledge of the facts...