State ex rel. Frost v. Creusbauer

• Decision Date: 31 October 1878
• Citation: 68 Mo. 254
• Parties: THE STATE ex rel. FROST, Admr. of Deegan, v. CREUSBAUER et al., Appellants.
• Court: Missouri Supreme Court

68 Mo. 254

THE STATE ex rel. FROST, Admr. of Deegan,

v.CREUSBAUER et al., Appellants.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Phelps Circuit Court.--HON. V. B. HILL, Judge.

This suit was brought by Frost as administrator of the individual estate of Frank Deegan, deceased, upon a bond executed by Creusbauer, as principal, and the other defendants as sureties. Creusbauer and Deegan had been partners in business, and Creusbauer administered upon the partnership estate, and as administrator gave the bond sued on. It appeared from the petition that he was appointed on the 23rd day of September, 1872, and that the bond was given the 2nd day of January, 1873; that there had been a final settlement of the partnership estate, and the probate court had adjudged the sum of $2,380.44 to be due from Creusbauer to the plaintiff, as administrator, and had ordered him to pay that sum, but he had failed to make payment. Defendants demurred to the petition on the grounds that it showed that the bond sued on was not given until long after the letters of administration were issued, and it did not state whether the same was an original or a new and additional bond; that it did not appear whether the loss or waste to the estate was prior or subsequent to the execution of the bond; that it did appear that a judgment had been entered by the probate court against Creusbauer, but not whether any execution had been issued, or whether any diligence had been used to collect the money and that there was no sufficient assignment of a breach of the bond. The demurrer was overruled, and the sureties filed an answer pleading non est factum.

At the trial plaintiff offered evidence of the execution of the bond by defendants, and rested. Defendants then showed that Creusbauer, as surviving partner of the firm of Deegan & Creusbauer, prior to the execution of the bond sued on, gave a bond as administrator of the partnership estate, which was duly approved by the probate court, and on which letters were granted; that afterwards Creusbauer, of his own motion, without any order of the probate court or request of sureties on original bond, procured the defendant sureties to sign the bond sued on, signed it himself and handed it to the clerk of the probate court, who filed it, but never called the attention of the probate court to the bond; that the original bond was in all respects sufficient and the sureties thereon solvent. Defendants then rested. The plaintiff then offered in evidence a record of Creusbauer's final settlement, showing balance due the estate of Deegan, and an order on Creusbauer to pay over said balance to the plaintiff. To this defendants objected, for the reason that plaintiff had rested his case and defendants had also rested, and because the defendant sureties were strangers to the record and settlement, and to the administration. These objections the court overruled and admitted the testimony. Defendants prayed the court to give the following declaration of law, but the court refused: That if a proper bond had been given upon which letters of administration had been granted, in the absence of evidence that the probate court had ordered or approved the bond sued on, it was a voluntary and void bond. There was judgment for the plaintiff and the defendants appealed.

C. C. Bland for appellants.

H. B. Johnson for respondent.

SHERWOOD, C. J.

Deegan and Creusbauer were partners; Deegan died, and Creusbauer administered on the partnership estate, being appointed for that purpose September 23rd, 1872. This suit is brought on the relation and to the use of Frost, administrator of the estate of Deegan, on a bond executed by Creusbauer and...