State ex rel. Collins v. Dulle

• Decision Date: 31 January 1870
• Citation: 45 Mo. 269
• Parties: STATE ex rel. COLLINS, KELLOGG & KIRBY, Plaintiffs in Error, v. G. H. DULLE et al., Defendants in Error.
• Court: Missouri Supreme Court

45 Mo. 269

STATE ex rel. COLLINS, KELLOGG & KIRBY, Plaintiffs in Error,

v.G. H. DULLE et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Ewing & Smith, and G. F. White, for plaintiffs in error.

I. Any one injured may sue on the bond for waste. (Gen. Stat. 1865, p. 531, § 9; Oliver v. Crawford, 1 Mo. 188; State v. Chouteau, 1 Mo. 524-8; 3 Mo. 127; Morrison v. St. Gemme, 23 Mo. 344 et seq.; Adams v. Campbell, 10 Mo. 724; Oldam v. Trimble, 15 Mo. 225, 228; Coman v. Mardell, 15 Mo. 424.)

II. The petition showing on its face a cause of action, a motion in arrest is not the mode of reaching an objection to the capacity of plaintiff to sue. (Gen. Stat., 1865, p. 684, § 7; Jackson v. Anderson, 32 Mo. 118; Welch v. Bryan, 28 Mo. 30; Jones v. Stille, 36 Mo. 324; Wood v. Mann, 1 Sumn. 500.) There is really but one demand in this case--one allegation of waste--and after that was established by proof, the different demands upon which plaintiffs seek to recover would come in like items in an account, and they all, in fact, constitute but one cause of action. (State, to the use, &c. v. Davis et al., 5 Mo. 406.)

Lay & Belch, for defendants in error.

The plaintiffs can not maintain this suit. The administrator de bonis non was the party to sue. (R. C. 1855, §§ 45-7, pp. 120, 121; 35 Mo. 323; 15 Mo. 490; 9 Mo. 356.) It was not the intention of the Legislature, that all the creditors of an estate, and the administrator also, should commence suit and carry them on simultaneously. Several distinct breaches are assigned and there is a general verdict. (State v. Ruggles, 20 Mo. 99.)

WAGNER, Judge, delivered the opinion of the court.

From the record it appears that B. Bruns administered on the estate of Grisberg, deceased, and that Barrett and Dulle were his securities on the administration bond. The plaintiffs had a demand against the estate, which was regularly proved up and classified. The plaintiffs had a demand against the estate. They were also the assignees of several other demands. Bruns made his first annual settlement, showing assets in his hands to a considerable amount, which were liable to the claims of creditors, and subsequently died without making distribution. Letters of administration de bonis non were granted on the estate of Gris berg, but the assets of which Bruns died possessed were not paid over to the succeeding administrator. The plaintiffs commenced suit in the Cole County Circuit Court against the securities on the administrator's bond of Bruns, deceased, and assigned several distinct breaches.

The jury returned a general verdict for the plaintiffs, and assessed their damages in one entire sum. Upon this verdict judgment was rendered, and the defendants moved in arrest, which motion being overruled, they carried the case to the District Court, where the judgment of the Circuit Court was reversed, and the plaintiffs have now brought error.

Several questions have been argued in this Court, only two of which we deem it necessary to notice: First, as to the validity of the verdict, and second, whether the action is maintainable. The petition on the bond set out ten distinct breaches, and the verdict was for an entire and gross sum. On such a verdict it is impossible for the court to know how the issues were formed, on which of the breaches the damages were assessed, and how much on each one. This practice is erroneous, and furnished a sufficient ground for arresting the judgment. (Mooney v. Kennett, 19 Mo. 551; Clark's Adm'r v. Hann. & St. Jo. R.R. Co., 36 Mo. 215; Pitts v. Frigate, 41 Mo. 405.) The next question presented by the record is whether it was competent for the plaintiff to maintain this action.

By the statutes of this State it is provided that if all the exec utors or administrators of an estate die or resign, or their letters be revoked, in cases not otherwise provided for, letters of administration on the goods unadministered shall be granted to those to whom administration would have been granted if the original letters had not been obtained, or the persons obtaining them had renounced the administration; and the administrators shall perform like duties and incur the like liabilities as the former executor or administrator.

The statute further declares that if any executor or administrator die, resign, or his letters be revoked, he or his legal representatives shall account for, pay and deliver to his successor, or to the surviving or remaining executor or administrator, all money, real and personal property of every kind, and all...