Smith v. Sims

• Decision Date: 30 April 1883
• Parties: SMITH v. SIMS et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 269

SMITH

v.SIMS et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

REVERSED.

Ira Hall for appellants.

McIntyre & Brown for respondent.

WINSLOW, C.

This action was originally commenced against appellants individually, and M. V. Ford and James Ridgway as executors of Z. J. Ridgway, deceased. An amended petition was filed in substance as follows: That on March 12th, 1875, Z. J. Ridgway, a resident of Audrain county, died testate, naming the defendants Ford and Ridgway as executors of his will, which was duly probated and letters issued to the executors named therein, who qualified and are still acting thereunder; that January 1st, 1874, the testator executed his promissory note to the defendant James E. Sims, for $729, value received, payable one day after date, with interest at ten per cent; that Sims was the brother-in-law of testator; that July 13th, 1875, Sims presented the note for allowance against the estate, and it was allowed for $845.47, and classed in the fifth class of demands; that in March, 1876, the executors paid Sims $198.48 on this demand; that there were allowed against said estate demands to the amount of $22,000; that the executors have applied to the payment of demands all the estate in their hands subject to such payment, and that the assets are insufficient to pay all the demands in full by about thirty-nine per cent; that said note was without consideration and a gift; that at its execution the testator was insolvent, and all the debts allowed were then out-standing; that said note was allowed by the false and fraudulent representations of Sims to the effect that it was given for a valuable consideration and a valid debt; that after the payment to Sims above stated, he transferred the evidence of said allowance and judgment to defendant Carson, who knew that the same was fraudulent and without consideration as aforesaid; that in 1877, the executors paid Carson $350 on said allowance; that plaintiff is a creditor of the estate to the amount of $1,108, allowed May 10th, 1876, and that the sum of $432.12, with interest, remains unpaid for want of assets. The relief asked is, that the note be declared void and the allowance thereof be set aside, and that Sims and Carson, or either of them, pay into court for the use and benefit of plaintiff, to the satisfaction of his claim, the sum paid to them, and the balance for the benefit of other creditors.

The executors demurred to this petition on the grounds that it did not state facts sufficient to constitute a cause of action, and that they were improperly joined as parties. Sims and Carson filed separate demurrers, in substance alike, stating as grounds, that the petition did not state a cause of action, that Carson and Sims were improperly joined with the executors, that Carson and Sims were improperly joined as defendants, that individual causes of action against Carson and Sims were improperly joined, and that no joint liability against Carson and Sims was shown by the petition. On the hearing of the demurrers the plaintiff entered a non-suit as to the executors, the demurrers were overruled as to the other defendants, who declined to plead further, and a judgment was entered in favor of plaintiff against Sims and Carson for $460.20, the amount of his claim; and these defendants were ordered to pay into court $116.28, being the balance of the amount paid to them on their demand by the executors after paying plaintiff, to be disposed of by the order of the court for the benefit of the other creditors of the estate.

1. PROBATE JUDGMENT: collateral attack: want of consideration.

The petition shows on its face that the note of the testator to the defendant Sims was duly allowed in the probate court of Audrain county, and all the facts necessary to give that court jurisdiction are stated. The allowance of a demand by a probate court of this State is a judgment of a court of record, and declared by statute to have all “the force and effect of a judgment.” R. S., § 192. By the same section these courts are given jurisdiction over “all offsets and other defenses allowed by law;” and by section 194 the executor or administrator is empowered to present any offset or make any defense that the testator or intestate might have made in his lifetime. The complaint against the note in question is, that it was executed voluntarily and without consideration, and that its allowance operated as a fraud upon the creditors of the estate. This, if true, would have been a good defense against the allowance of the note; but it was purely a matter of defense, not the subject of affirmative relief; and, hence, whether interposed in the probate court or not, it was barred by the judgment of allowance, and can only be re-opened or affected by such matters as would affect the judgment itself. Greenabaum v. Elliott, 60 Mo. 25. The statute already cited committed the jurisdiction over these matters to the probate court; and an appeal from its judgment to the circuit court was authorized. R. S., § 292. Or the allowance could have been vacated and a new trial obtained upon the proper application. R. S., § 216. None of these steps were taken to review the allowance, but it was allowed to ripen into a judgment, which could only be assailed upon some recognized ground of equitable interposition.

2. _____: _____: fraud.

The plaintiff's entire case rests, primarily, upon the want of consideration for that note, and this matter has been adjudicated by a judgment which is conclusive upon him at law. It must be apparent that he can make no progress until he removes that judgment and puts himself in a position to re-open the matter apparently concluded by it; and the controlling question in the case is, has he made such a showing in his petition as will entitle him to relief against the judgment? The only allegation in the petition affecting the judgment is, “That said note was allowed against the said estate by the false and fraudulent representations of the defendant Sims, to the effect that said note was for a valuable consideration, and represented a valid debt.” In other words, he procured the allowance of a demand against the estate, based upon a note which purported on its face all that he is charged with representing, but against which a good defense existed. Whether this defense was made, or why it was not made, is not stated; nor is it charged that there was any collusion with the executors, or any imposition upon the court in procuring the allowance. All of these matters are left to conjecture.

“The fraud for which a judgment may be vacated or enjoined in equity must be in the procurement of the judgment. If the cause of action be vitiated by fraud,...