State ex rel. Christy v. Donegan

• Decision Date: 16 May 1882
• Citation: 12 Mo.App. 190
• Parties: STATE OF MISSOURI, EX REL. E. A. CHRISTY, PLAINTIFF, Appellant, v. JOHN J. DONEGAN, DEFENDANT, Appellant.
• Court: Missouri Court of Appeals

12 Mo.App. 190

STATE OF MISSOURI, EX REL. E. A. CHRISTY, PLAINTIFF, Appellant,

v.JOHN J. DONEGAN, DEFENDANT, Appellant.

St. Louis Court of Appeals, Missouri.

May 16, 1882.

1. The administrator of a partnership estate, like other administrators, is required to publish notice of final settlement.

2. A final settlement of a partnership estate, made without notice, has not the effect of a judgment, and is, like an annual settlement, open to review.

3. A judgment and order of distribution made on such a settlement is conclusive upon the administrator's sureties as to the amount due by the administrator.

4. A judgment rendered in the circuit court, against the sureties, upon an order of distribution made upon such a settlement, cannot be collaterally attacked.

5. A judgment rendered by a court having jurisdiction of the parties and of the subject-matter, cannot be collaterally attacked.

6. A partnership administrator is not entitled to an allowance against the estate of his deceased partner for groceries furnished the latter's widow and administratrix.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

W. B. THOMPSON, G. A. MADILL, and T. E. RALSTON, for the plaintiff: The judgment of the circuit court, affirmed by the court of appeals and subsequently affirmed in the supreme court of the state, between the plaintiff and defendant, principal in the bond sued on in this case, is conclusive on the defendant, unless he can show fraud, collusion, clerical error, or payment.-- Stoop v. Witler, 1 Mo. App. 420; The State to use v. Creuzbauer, 68 Mo. 254; The State to use v. Baldwin, 31 Mo. 561; The State to use v. Baldwin, 27 Mo. 103; The State to use v. Ledergerber, 3 Mo. App. 572; The State to use v. Richmond, 3 Mo. App. 572; The State to use v. Holt, 27 Mo. 340. A judgment rendered without notice is void.-- The State to use v. Hoster, 61 Mo. 544; McCartney v. Garneau, 4 Mo. App. 566, 567; Brown v. Wood, 64 Mo. 550; Howard v. Thornton, 50 Mo. 291.

E. J. LINDLEY and JAMES TAUSSIG, for the defendant: A record of final settlement of a surviving partner, made in the probate court, is, in the absence of evidence of fraud, conclusive as to the extent of his liability, and conclusive that notice of final settlement was given. Such a final settlement has the dignity of a judgment of a court of record, and cannot be collaterally impeached.-- The State v. Rucker, 59 Mo. 24; Woodworth v. Woodworth, 70 Mo. 603; McCartney v. Garneau, 4 Mo. App. 566; The State v. Creuzbauer, 68 Mo. 257; Johnson v. Beasley, 65 Mo. 250; Willey v. Paulk, 6 Conn. 76, and cases cited. A surety on the bond of a surviving partner is not liable for interest on the sum due by his principal until demand of payment is made of the surety, and payment is refused.-- Thompson v. School District, 71 Mo. 501; Southgate v. Atlantic, etc., R. Co., 61 Mo. 96; Burgess v. Care, 52 Mo. 43. The final settlement of Ryan is conclusive as to his liability, and as to the liability of his surety, until it is set aside or reversed; it cannot be assailed collaterally.-- The State v. Rucker, 59 Mo. 24; Woodworth v. Woodworth, 70 Mo. 603. As to surviving partner's final settlement, the same is true.-- McCartney v. Garneau, 4 Mo. App. 566; The State v. Creuzbauer, 68 Mo. 257. It cannot be assailed collaterally, however irregular it may be.-- The State v. Rucker, 59 Mo. 24; Willey v. Paulk, 6 Conn. 76, and cases cited; Johnson v. Beasley, 65 Mo. 250.

BAKEWELL, J., delivered the opinion of the court.

This is an action against the surety on an administrator's bond. The proceeding was begun in August, 1880, by attachment, on the ground of non-residence. The allegations of the petition are substantially as follows:--

One Christy died in St. Louis, in October, 1867. His widow, who is the relatrix of plaintiff, qualified as administratrix. Christy, when he died, was in partnership with one Ryan, who administered as surviving partner, and gave the bond sued on in this action, with defendant Donegan, and McCartney, Walker, and Merriman as sureties. The condition of the bond is set out in the language prescribed in the statute for the bond of a partnership administrator. Several breaches are alleged: That Ryan, on December 29, 1867, the date of the bond, had, and ever since has had, and held for his own use and benefit, $15,000 belonging to the co-partnership, in excess of the amount needed to satisfy partnership debts and costs, and refuses to pay to plaintiff's relatrix interest on that sum; that, at the expiration of two years from the date of the bond, Ryan had and held for his use $30,000 in excess of the sum required to pay partnership debts, which he refuses to pay over to plaintiff's relatrix; that Ryan, since the date of the bond, holds $5,000, which he claims as commissions of the partnership estate, contrary to an agreement with Christy, that the surviving partner should settle the partnership estate free of charge. The petition goes on to say, that, on March 18, 1874, relatrix, at the relation and for the use of herself as administratrix of Christy, instituted suit on this bond in the name of the state of Missouri against all the living sureties, and against Ryan as principal, and against the administratrix of the surety McCartney, who was dead, to the April term of the circuit court of St. Louis County; that the action was dismissed as to Merriman and defendant Donegan, because they were not served; that, in this suit, judgment was rendered on November 22, 1875, against Ryan, Walker, and McCartney's administratrix, for the penalty of the bond, to be satisfied on payment of $11,626.83, with interest and costs; and that this judgment is wholly unsatisfied; that in that suit, the breach herein alleged as to the conversion of $5,000 was not set up, and there was no recovery for that breach. Plaintiff claims damages in the sum of $16,626.83, and asks judgment for the penalty of the bond, and execution for the amount claimed.

The answer denies the alleged breaches of the bond, and puts in issue the allegations as to the former suit and judgment, and says that such judgment, if rendered, is of no force as against defendant, because he had been absent from the United States for seven years, and had no notice of the suit, and had a complete defence to the action; that Ryan, as surviving partner, made final settlement in the probate court, whereupon a balance was found against him of $26,696.28, of which sum he was then ordered by the probate court to pay to himself, as surviving partner, $19,974, and to relatrix, as administratrix of Christy, $6,722, which was the only sum which he owed to Christy's estate. Defendant says that this judgment of the probate court remains in force, and concludes both Ryan and Christy's administratrix; and that, when said final settlement was made, Ryan paid to relatrix the full sum that he was ordered to pay her as above, which she then accepted in full, whereby Ryan and his sureties were discharged.

The reply sets up that the alleged final settlement was made without notice, and, for this reason, was not a final settlement, and the order made by the probate court had not the force of a judgment, and was null and void.

Before the filing of any answer, defendant moved to strike out all allegations in the petition relating to certain specified breaches, on the ground that the plaintiff could not consistently seek to recover for these breaches and also on the judgment. This motion was sustained as to a new breach not alleged in the first suit, and overruled as to the rest. This breach was then withdrawn. Defendant then moved that plaintiff be compelled to elect between seeking a recovery on the judgment, and on the other breaches of the bond. This motion was overruled.

It appears that Thomas Ryan and James Christy were co-partners, as Ryan & Christy. In October, 1867, Christy died. Ryan administered as surviving partner, and plaintiff, Christy's widow, administered on the general estate. Ryan made several settlements. The last of these was treated as a final settlement, though it does not appear that there was any publication of notice. By this settlement, Ryan was found to have on hand $26,696.28, and was ordered to pay $6,722.29 to the widow and administratrix of Christy, and the balance to himself. On account of this order, Ryan paid to Mrs. Christy, the administratrix, on July 24, 1871, $1,500.

On March 18, 1874, Mrs. Christy, as administratrix, began the action set forth in the petition, against Ryan and his sureties, of whom Donegan was one, to recover damages for breaches of Ryan's bond as surviving partner. The action was dismissed as to Donegan and another surety, who were not found. The defendants who were served set up as one defence, that Ryan had made final settlement in the probate court, in which his liability was determined. The cause was sent to a referee, before whom it was admitted that there had been no notice of a final settlement. The referee, therefore, found the settlement not conclusive; opened the accounts, and found Ryan indebted to Christy's estate, $11,626.83. The report was confirmed, and there was judgment accordingly. An appeal was taken from this judgment, and the judgment affirmed for failure to prosecute the appeal. Pending this action, Mrs. Christy became indebted to Ryan for groceries, and gave him her receipt, as administratrix, for $1,242.88, the amount of this private indebtedness, expressing in the receipt that that sum is to be credited on Ryan's debt to the estate of Christy. There was realized on the judgment, by executions issued from time to time, $3,394.75.

On the trial of the action now under consideration, plaintiff gave in evidence the bond of Ryan, and the record and all the proceedings in the first suit, and proved the death of Christy, and rested his case.

Defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.

Defendant introduced all the...