Smiley v. Cockrell

• Decision Date: 16 May 1887
• Citation: 4 S.W. 443,92 Mo. 105
• Parties: Smiley et al. v. Cockrell et al., Executors, Appellants
• Court: Missouri Supreme Court

4 S.W. 443

92 Mo. 105

Smiley et al. v. Cockrell et al., Executors, Appellants

Supreme Court of Missouri

May 16, 1887

Appeal from Pettis Circuit Court. -- Hon. J. P. Strother, Judge.

Affirmed.

W. W S. Snoddy for appellants.

(1) The circuit court erred in admitting the records of the deeds and mortgages instead of the originals. If the original deeds, or mortgages, were lost or destroyed, proof of their loss or destruction should have been made. If they were in existence but not in possession or power of respondents, steps should have been taken to procure them, or, at least, evidence should have been introduced to account for their non-production in some way. And, even had respondents proved all these things, then a certified copy of the record would have been the next best evidence, and not the record book itself. These propositions are so potent as to require no citation of authorities to support them. (2) The court erred in proceeding to try that cause when there was no party in court to represent the interest of the estate of George W Smiley, deceased. A citation had been issued to the executors in the year 1880, requiring them to make final settlement at the February term, 1881. They made their final settlement, and were discharged from their trust. Whether this was right or not they had no longer power to represent the estate of George W. Smiley. There was no party in court who could legally appear for said estate; there must be an adverse party in court, either a real party in interest, or one legally authorized. An infant must be represented by a guardian, or next friend; the estate of one deceased, by an administrator or executor. If these appellants made a final settlement when they should not have done so, and were discharged, the estate should not be allowed to suffer by it. They had no more right to appear for the estate of the deceased than an administrator or executor who had been removed, or who had resigned. The judgment of the probate court, approving the final settlement and discharging appellants, stood as a valid judgment, and could not be ignored until set aside, or reversed. It was the duty of the circuit court to see that an administrator was appointed for the estate when a suit was pending, either generally, by the probate court, or the circuit court sitting as a court of chancery, before proceeding with the trial, should have appointed an administrator de bonis non.

G. P. B. Jackson for respondents.

(1) This court will not disturb the finding of the court below, upon a mere conjecture that possibly it should have been different. (2) The court properly admitted in evidence the records of the several deeds, to which respondents were not parties, and of which they did not have the control. Gilbert v. Boyd, 25 Mo. 27; Barton v. Murrain, 27 Mo. 235-239; Avery v. Adams, 69 Mo. 603. (3) The appellants could not trifle with the court, and their conduct amounted to an appearance. Tower v. Moore, 52 Mo. 118; Barnes v. McMullins, 78 Mo. 260-277. The final settlement and order of discharge did not oust the jurisdiction of the circuit or Supreme Court, nor prevent those courts from proceeding to a final determination of this case. Seibel v. Simeon, 62 Mo. 255; State ex rel. v. St. Louis County Court, 38 Mo. 402; Mollan v. Torrance, 9 Wheat. 537; Tapley v. Martin, 116 Mass. 275; Upton v. Railroad, 25 N.J.Eq. 372; Koppel v. Heinrichs, 1 Barb. 449; Mabley v. Judge, 41 Mich. 31; Estate of Harlan, 24 Cal. 182. The circuit court had jurisdiction in the estate. R. S., secs. 191, 186. Final settlement could only be properly made when the estate was fully administered. R. S., sec. 239. Under our system of administering estates plene administravit cannot be pleaded. Covington v. Burnes, 1 Dill. 16.

OPINION

Sherwood, J.

This case was here on a former occasion. Smiley v. Smiley, 80 Mo. 44. It was an equitable proceeding to set aside for fraud the final settlement of Geo. W. Smiley, as administrator of H. W. Smiley, and for an accounting. Geo. W. Smiley having died after service of summons, the proceeding was revived against his executors, the present defendants -- Green S. Cockrell and Wm. M. Henderson. The suit was instituted in 1877, service being had on Geo. W. Smiley and one of the securities on his bond as administrator, James W. Beaman, in April of that year. The other surety, Hunter, was not served. In the opinion of the court when this case was formerly here, it is stated: "The other security, Beaman, was one of the judges of the county court which approved the settlement of Smiley, and discharged him and his securities." The final settlement sought to be set aside was made May 3, 1869. The executors, Cockrell and Henderson, and the defendant, Beaman, appeared to the action, and filed an answer at the January term, 1878, and subsequently thereto filed an amended answer, which, as to Beaman, was finally withdrawn, and judgment by default entered.

The cause was first tried at the May term, 1880, where judgment was rendered against the plaintiffs, from which they appealed, and at the October term, 1883, this court reversed the judgment, remanded the cause, with directions to the circuit court to set aside the final settlement and ascertain, on a full accounting, the amount received by him (the administrator), with all interest due to the plaintiffs, and render a decree therefor. The cause was again heard by the circuit court, at the October term, 1884, when that court, acting in obedience to our mandate, entered a decree setting aside the final settlement of Geo. W. Smiley, administrator, on the ground of fraud and thereupon took an accounting, resulting in a judgment in favor of plaintiffs, in the sum of $ 5463.75, against Beaman, personally, and against the other defendants in their representative capacity. From this judgment said executors have appealed.

The pleadings were the same, and the evidence the same, except as hereinafter noted, as when the cause was here before. Objection was taken by the executors, who were the only appearing defendants, to the cause being proceeded with against them. Here is the record they made on that point:

"When said cause was called for trial, the former executors of the estate of G. W. Smiley, deceased, the original defendant herein, stated that in 1881, they had made final settlement of said estate, and were discharged from their trust as such; that there was now no executor or administrator of said estate, and there was no one to represent the estate in said cause in this court; that they appeared only for that purpose. Said executors objected to the court proceeding against them as executors on said grounds. The court overruled said objections, and held that said former executors represented the interests of said estate, as adversary parties to the plaintiff, and proceeded with said trial against said former executors, to which action of the court the said Green S. Cockrell and Wm. M. Henderson, said former executors, excepted then and there, at the time, duly and legally. The court then proceeded with the trial of said cause, against the objections and exceptions of the former executors, defendants herein, when they stated that they no longer appeared in said cause, still claiming they were not parties in their individual right, and that they were not executs and declined to defend as such, but the court held they had been proper parties in their representative capacity, and that this court was not bound by the action of the lower court while this suit was pending in the Supreme and circuit courts, and under the ruling of the court, they defended said action, but then and there excepted to the said ruling of the court."

The objection thus made by the executors is without merit. Their act of making a final settlement of the estate in their hands was unusual and unwarranted. It is not customary for final settlements of an estate to be made, pending litigation against it. And there is not a word or syllable in the record to...