Sprinkle v. Estate of Fleming

• Decision Date: 04 April 1922
• Citation: 239 S.W. 899,209 Mo.App. 405
• Parties: THOMAS H. SPRINKLE, Appellant, v. ESTATE OF ALFRED W. FLEMING, Respondent
• Court: Missouri Court of Appeals

239 S.W. 899

209 Mo.App. 405

THOMAS H. SPRINKLE, Appellant, v. ESTATE OF ALFRED W. FLEMING, Respondent

Court of Appeals of Missouri, St. Louis

April 4, 1922

Appeal from the Circuit Court of St. Louis County.--Hon. John W McElhinney, Judge.

AFFIRMED.

Judgment affirmed.

Thos H. Sprinkle for appellant.

(1) The right of the curator, when his final settlement is contested to employ counsel at the expense of the estate is too firmly established by the decisions of this state to necessitate referring the court to all of them. A few are sufficient. Simmons Appeal, 103 Mo.App. 388; In re Estate of Meeker, 45 Mo.App. 188; State ex rel. v. Walsh, 67 Mo.App. 348; Grove v. Reynolds, 100 Mo.App. 59; Gamble v. Gibson, 59 Mo. 585; Dooley v. Welch, Admx., 172 Mo.App. 535; Skinner v. Whitrow, 184 Mo.App. 229. (2) Having the right to employ counsel, and having employed counsel in defense of the exceptions in good faith, the attorney is entitled to reasonable compensation out of the estate, to be fixed by the court, in the first instance. Crowe v. Lutz, 175 Mo.App. 431; In re Est. of Meeker, 45 Mo.App. 188; Mayhall v. Stoecker, 191 S.W. 1117; State ex rel. v. Walsh, 67 Mo.App. 348; Gamble v. Gibson, 59 Mo. 585; Nichols v. Reyburn, 55 Mo.App. 5. (3) The employment of counsel made in good faith to defend the exceptions, the attorney is entitled to a reasonable fee for such defense, whether his efforts prove entirely successful or not, he is no insurer. If attorney and curator act in good faith that is all that is required. Dooley v. Welch, 172 Mo.App. 537. (4) Under the above decisions, the court not the curator must fix the fee. Mayhall v. Stoecker, 191 S.W. 1117. (5) Such claims are expenses of administration, if reasonable, must be allowed by the court against the estate as diminishing the assets in the hands of its statutory trustee to that extent. Gamble v. Gibson, 59 Mo. 585; Nichols v. Reyburn, 55 Mo.App. 5. (6) The attorney representing the curator may, in the event of non-payment of his fees, waive his personal claim against the curator, and apply directly to the proper court for the allowance and payment thereof out of the estate. Long v. Robinson, 58 Ind. 62; Nichols v. Reyburn, 55 Mo.App. 5; Powell v. Powell, 23 Mo.App. 368; Matson & May v. Pearson, 121 Mo.App. 132; Goodman v. Griffith, 155 Mo.App. 582; State ex rel. v. Walsh, 67 Mo.App. 348. (7) It is true that the law abhors a multiplicity of actions but it means actions against the same persons. 1 Corpus Juris, p. 106, note 43. In the case of Sprinkle against the Trust Company of St. Louis County for which a judgment was rendered constituted no defense in the case at bar for the reason, that the case of Sprinkle against the Trust Company was not an action between the same parties nor was it upon the same subject. 1 Corpus Juris, p. 1106, sec. 215; 23 Cyc., 1182. The doctrine, however, applied only to the same cause of action and concludes such rights only as were then before the court and are capable of being presented and adjudicated between the parties. Edmundson v. Jones, 96 Mo.App. 83; Leet v. Gratz, 124 Mo.App. 394; Menges v. Melton P. Co., 96 Mo.App. 611; Wheless v. Serrano, 121 Mo.App. 17. The theory of res adjudicata has no application to the case at bar. The issues in the case of Sprinkle v. Trust Company of St. Louis County were etirely different from those of the case at bar, there being nothing in the case of Sprinkle v. Trust Company to bar and, therefore, does not conclude the parties in the case at bar. Issues that were tried or might have been tried in the former action may be shown by the entire record or by parol evidence and the judgment thereon is conclusive on both parties as to all matters between them. Lincoln Trust Co. v. Nathan, 122 Mo.App. 319. (9) A finding of facts which does not embrace all the constitutive facts is open to attack in the appellate court. Fahy v. Grocery Company, 57 Mo.App. 73; Bailey v. Emerson, 87 Mo.App. 220. If the record does not contain sufficient evidence to support such finding it will be disturbed on appeal; consequently, if the finding is not in accord with the record the appellate court should remedy the defect, and when all facts are before the court there is no necessity of a new trial, the duty of the court is to remand with directions to the circuit court to enter judgment for the plaintiff, in such sum as the evidence justifies. City of De Soto v. American Guaranty Trust Co., 102 Mo.App. 1; College v. Dockery, 241 Mo. 561; Knisely v. Leathe, 178 S.W. 461.

John B. Reno and Irvin V. Barth for respondent.

"It is well settled that a single demand cannot be split and separate suits maintained for various parts thereof. Where the demand is essentially an entirety, but one action may be predicated upon it. And if a judgment is obtained upon a portion of a demand of such character, the right of action is gone as to the residue thereof not embraced within the judgment. The judgment will conclude the rights of the parties with respect to the cause of action arising upon the entire demand, whether the judgment in fact includes the whole or only a part thereof, in accordance with the maxim, 'Nemo debet bis vexari pro eadem causa.'" Peper Automobile Company v. St. Louis Union Trust Co., 187 S.W. 109; Bircher v. Boemler, 204 Mo. 554; Pfeifer v. Suss, 73 Mo. 245; Wagner v. Jacoby, 26 Mo. 532; Scholl v. Pollars, 84 Mo.App. 286; Morrison v. De Donato, 76 Mo.App. 643; Morgan v. Railroad, 111 Mo.App. 721; Savings Bank v. Tracey, 141 Mo. 252; Rundelman v. Boiler Works Company, 178 Mo.App. 642. Moreover, there is every element of privity here. "Where the persons are so related that one would be compelled to make contribution or to pay a judgment against the other a judgment in favor of one would be a bar to a suit against the other." Taylor v. Sartorious, 130 Mo.App. 23; Stolze v. U. S. Fidelity Co., 153 Mo.App. 29; Womach v. St. Joseph, 201 Mo. 467; Fiene v. Kirchoff, 176 Mo. 516. There is no escaping the fact that the services performed by appellant from January 20, 1914, to December 2, 1916, and from December 8, 1916, to May 24, 1917, were continuous and founded upon the same underlying contract. The court below so found. Thus not only was there "substantial evidence" supporting the findings of the court, but, indeed, the evidence was all one way. Clearly those findings of fact must be taken as a verity. Sawyer v. French, 235 S.W. 126; Baker v. St. L. Union Trust Co., 234 S.W. 858; MacDonald v. Tittmann, 96 Mo.App. 536; Hunter v. Moore, 202 S.W. 544; Marx v. Wooster, 199 S.W. 446; Griffith v. Mut. Protective League, 205 S.W. 286; Bruer v. Dunham, 209 S.W. 573; City of DeSoto v. American Guaranty Mut. Fire Insurance Co., 102 Mo.App. 1.

NIPPER, C. ALLEN, P. J., Becker and Daues, JJ., concur.

OPINION

NIPPER, C.--

This is an appeal from a judgment rendered in the circuit court against plaintiff and in favor of defendant arising on the petition filed by plaintiff asking that the probate court fix the fee for services rendered by plaintiff in the above estate. The case was originally filed in the probate court. Upon a trial before the court judgment was rendered for defendant, from which plaintiff appeals. Upon request, the court made a finding of facts. We here set out so much thereof as we deem necessary:

"Upon the request of the petitioner that the court make a finding of the facts herein separate from the conclusions of law, the court finds the facts herein to be as follows:

"The Trust Company of St. Louis County, in April, 1906, became curator of the estate of said Alfred W. Fleming, a minor, by appointment of the probate court of St. Louis County, and remained such curator until September 2, 1913, when said Fleming became twenty-one years of age. During that time the curator made annual settlements of its account and on September 3, 1913, filed its final settlement in said court returnable to the November term, 1913, thereof, and caused notice thereof to be served upon said Fleming. At said term, on December 30, 1913, said Fleming filed exception to said final settlement and to the other settlements of said curator, which exceptions are in evidence in this cause by printed copy marked Exhibit A, and are the exceptions on file in Case No. 29688 in this court, in the matter of the estate of Alfred W. Fleming, a minor, and are here referred to and made a part of this finding of facts.

"The petitioner herein has for twenty-three years been a licensed attorney at law of the city and county of St. Louis and State of Missouri, and was in April, 1906, employed by the said trust company as such curator through its president to advise and represent it as such curator as its attorney in its administration of said estate, and thereafter performed professional services as such attorney for said curator up to the time when said ward became of age, including therewith assisting in the preparation and filing of said final settlement, and received full compensation for all of the same to said time.

"Upon the filing of said exceptions to the final settlement, the said trust company, by its president acting for it, employed and directed the petitioner as attorney for the said company as curator to defend against the said exceptions, and the petitioner thereupon proceed to make such defense and in doing so performed the services itemized and specified in the itemized statement attached to the petition herein, on and between January 20, 1914, and December 2, 1916.

"While the said exceptions were pending in the probate court and being there heard and considered from time to time the said Fleming on February 22, 1914, filed a motion in said court for an order of partial distribution of said estate, which was overruled on March 23, 1914;...