State ex rel. Dean v. Daues

• Decision Date: 28 February 1929
• Docket Number: 28750
• Citation: 14 S.W.2d 990,321 Mo. 1126
• Parties: The State ex rel. John McH. Dean and Eugene G. Dean, Executors of Estate of Owen M. Dean, v. Charles H. Daues et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

14 S.W.2d 990

321 Mo. 1126

The State ex rel. John McH. Dean and Eugene G. Dean, Executors of Estate of Owen M. Dean, v. Charles H. Daues et al., Judges of St. Louis Court of Appeals

No. 28750

Supreme Court of Missouri

February 28, 1929

Reported at 321 Mo. 1126 at 1146.

Original Opinion of February 28, 1929, Reported at 321 Mo. 1126.

Peter T. Barrett and Joseph Block, both of St. Louis, for relators.

Robert M. Zeppenfeld, of St. Louis, for respondents.

OPINION

Seddon C.

On Motion for Rehearing.

Respondents urge, in their motion for a rehearing of this certiorari proceeding, that the construction given by this court, in Home Insurance Co. v. Wickham, 281 Mo. 300, to the several sections of the Administration Law, or statute, as amended by the General Assembly in 1911, and particularly the construction given to Section 195, Revised Statutes 1909, as amended in 1911 (now Sec. 186, R. S. 1919), is obiter dictum, and was unnecessary to a decision of that cause hence, it is insisted that respondents were not bound to follow the construction given to the several sections of the administration statute by this court in our opinion and decision in the Home Insurance Co. case, for the reason that what this court may have said in the opinion in that cause by way of dictum is not "controlling authority" upon respondents, as judges of the St. Louis Court of Appeals, within the meaning and application of Section 6 of the Amendment of 1884 to Article VI of the State Constitution. A further study and analysis of our opinion in the Home Insurance Co. case, however, convinces us that no portion of such opinion was dictum, and that all that was said by this court in that opinion, including our construction of the several sections of the Administration Statute, was necessary to a decision of the issues presented and joined in that cause. Therefore, the decision and opinion of this court in the Home Insurance Company case, supra, was the "last previous ruling" of this court on a question of law, and is "controlling authority" in the several Courts of Appeals, at least, until our ruling and holding in said cause has been modified or overruled by this court. We see no good or sufficient reason for modifying or overruling our opinion and decision in the Home Insurance Company case.

It is furthermore urged by the respondents in their motion for rehearing, as it was likewise strenuously urged by respondents upon the original submission of this proceeding, that our construction of Section 195, Revised Statutes 1909, as amended in 1911 (now Sec. 186, R. S. 1919), in the Home Insurance Company case, supra, has the effect, under certain hypothetical circumstances and in certain hypothesized instances, of requiring a claimant to exhibit his demand to the administrator or executor of a decedent's estate, and to present, or file, his demand in the probate court, for allowance, within 355 days, in order to prevent the bar of the special statute of limitation, whereas said section of the administration statute clearly and positively provides, and evinces the intention of the Legislature, that every claimant shall have a full and entire year, or 365 days, within which to exhibit his demand to the administrator or executor of a decedent's estate, and to present, or file, the said demand in the probate court, for allowance. In other words, it is the claim and contention of respondents that this court, in construing Section 195, Revised Statutes 1909, as amended in 1911 (now Sec. 186, R. S. 1919), in the Home Insurance Company case, has reduced, by judicial construction, the time within which a claimant may exhibit his demand against a decedent's estate, and may present, or file, his demand in the probate court, for allowance, to 355 days, although the statute, in clear and positive terms, allows a claimant a full and entire year of 365 days within which to exhibit his demand to the administrator, and to file, or present, such demand in the probate court, for allowance.

For many years prior to the amendment of 1911 (Laws 1911, page 82), and ever since the statute revision of 1879 (Sec. 189, R. S. 1879), the statute (Sec. 195, R. S. 1909) provided: "No claimant shall avail himself of the benefit of the preceding section unless he shall present his demand to the court in the manner provided by law, for allowance, within two years after the granting of the first letters on the estate," etc. [Italics our own.] This court was called upon, in two decided cases, to construe such statute, prior to its amendment in 1911. [Rassieur v. Zimmer, 249 Mo. 175; Keys v. Keys, 217 Mo. 48.] Both of the cited cases are reviewed in our main opinion in this original proceeding. As we have said in the main opinion herein, the opinion of this court in the Rassieur case, supra, discloses, in the statement of the controlling facts in that case, that the claimant, before presenting, or filing, his demand against the decedent's estate in the probate court, for allowance, served upon the administrator of said estate the written notice required and prescribed by Section 203, Revised Statutes 1909 (now Sec. 194, R. S. 1919), containing a copy of the instrument of writing or account on which claimant's demand was founded, and stating that claimant would present the same for allowance at the next term of the probate court, which written notice was served upon, or delivered to, said administrator more than "ten days before the beginning of such regular or adjourned term of the (probate) court," as required and prescribed by Section 204, Revised Statutes 1909 (now Sec. 195, R. S. 1919). Said this court in that case, speaking through Bond, J.: "Plaintiff in error (administrator) submits two questions to this court: (1) that the copy of the 'notice of demand' filed on April 8, 1907, as and for the demand of defendant in error (claimant), is not a statement of facts sufficient to constitute a demand against the estate of which plaintiff in error is administrator; (2) that the filing of this paper with the clerk of the probate court in vacation and a few days before the lapse of two years from the grant of letters of administration, not being followed by a presentation for allowance until the next term of the probate court when the statute of two years had run, is thereby barred. If the copy of demand filed as the basis of the claim against the estate in appellant's hands contains the elements of a cause of action for the sums therein mentioned and may be treated as a formal demand, then the second point relied upon by appellant must be ruled adversely, for this court has recently held that a demand, otherwise sufficient, which is lodged after proper (i. e., statutory) notice to the administrator with the clerk of the probate court and filed by him before the statutory two years have elapsed, is presented to the court, in the sense of the statute, from the date of its filing. [R. S. 1909, sec. 195; Keys v. Keys, 217 Mo. l. c. 65.] As the notice of demand was thus deposited with the clerk of the probate court, and filed by him a few days before the expiration of the statutory limit for the presentment of claims, it falls within the purview of that ruling." [Italics and parenthetical clauses our own.]

In the Keys case, supra, as we have pointed out in our main opinion herein, the statement of the controlling facts, set out in our opinion in that case, discloses that the claimant served upon, or delivered to, the administrator of the decedent's estate the statutory written notice required by Section 203, Revised Statutes 1909 (now Sec. 194, R. S 1919), stating that claimant would present his demand for allowance at the next term of the probate court, but that such written notice was not served upon the administrator ten days (but only two days) before the commencement of the next term of the probate court, as required by Section 204, Revised Statutes 1909 (now Sec. 195, R. S. 1919). The administrator of the Key's estate, however, indorsed upon the original of the statutory written notice served upon him his written statement, acknowledging that claimant's demand had been exhibited to him for allowance against decedent's estate, and that he thereby entered his appearance in the matter of said claim, or demand, to the next term of the probate court, all of which acts of the administrator were done before the special statute of limitation of two years had run against claimant's demand. In the Keys case, Graves, J., speaking for this court, said: "Counsel seem to agree, in the briefs, that the suit was instituted in time to obviate the bar of the special statute of limitations. . . . From the findings of fact it appears that the notice of claim was served upon the administrator November 30th, but the claim itself was not filed with the (probate) court until Monday, December 2, 1901. If we exclude Sunday, as we should, as above indicated, this filing was in time. No action was taken by the court for several days thereafter, but the notice was to the effect that the claim would be filed on December 2, 1901, and it was so filed. If the claim was filed in the court within the time, it can make no difference as to when the court acted thereon. Claimants cannot always regulate the actions of courts, and all they have to do is to present their claims within the statutory period of limitations. Nor does 'presentation' as used in the statute mean that there should be an actual presentation to the judge and a hearing thereon, but if the claim is actually lodged with the court, through the file mark of its clerk, or otherwise, such is a sufficient presentation to meet the requirements of the law, although the judge of the court may not act thereon for days thereafter. . . . In the case at bar the notice...