State ex rel. Shinn v. Stafford

• Citation: 73 Mo. 658
• Parties: THE STATE ex rel. SHINN et al., Appellants, v. STAFFORD.
• Decision Date: 30 April 1881
• Court: United States State Supreme Court of Missouri

73 Mo. 658

THE STATE ex rel. SHINN et al., Appellants,

v.STAFFORD.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

This was an action on an administrator's bond, begun in the probate court of Carroll county. The breach assigned was failure of the administrator to pay fifty per cent of a claim that had been allowed in favor of the plaintiff and against the estate of the intestate. There had been an order of the probate court to pay fifty per cent of all unsecured claims of the fifth class, allowed against the estate. Plaintiff's claim belonged to that class, but was secured by a deed of trust on real estate. Defendants had judgment in the probate court, and again in the circuit court, both courts holding that the probate court had no jurisdiction of the case.

Hale & Eads for appellants.

John L. Mirick for respondent.

I.

SHERWOOD, C. J.

There was error in holding that the probate court of Carroll county had no jurisdiction of the cause. Section 1 of article 4 of the act establishing that court, (Acts 1859-60, p. 45,) confers the usual “exclusive original jurisdiction” on that court, conferred by most of the probate acts, and section 2 of that article provides that “executors, administrators and curators may sue and be sued before said judge of probate, in all cases at law in which the action of debt or assumpsit will lie, and for all sums or demands, and damages claimed to be due to and from themselves in their representative character, or claimed to be due to or from their testator or intestate, and for all breaches of civil contracts in which executors and administrators * * are necessarily parties plaintiffs or defendants.” And section 3 of the same article, gives that court “concurrent jurisdiction in law and equity with the circuit court, in all matters * * in which executors, administrators, etc., are necessarily parties, complainants or defendants.” The statutory provisions just cited, have never been adjudicated by this court, and they cause this case to differ very widely from all others which have preceded it.

The case of Dodson v. Scroggs, 47 Mo. 285, was based upon the statute of 1845. Sess. Acts, p. 70. There, however, the suit was brought in the Dade circuit court, against Scroggs, administrator of Scott, and Rector, administratrix of Rector, as the representatives of their respective intestates, and against no one else. They were sued for breach of an administration bond which had been executed by Scott and Rector; and it was very properly held in that case that the probate court of Dade county, alone, had jurisdiction of the cause. The subsequent case of the State to use, etc., v. Maulsby, 53 Mo. 500, cited by counsel for both parties, was a suit by the administrator de bonis non of Hill against Maulsby, former administrator, and his sureties on his bond as such; all as individually liable, and not liable in a representative capacity. That case arose in New Madrid county, where the statutory provisions were the same as in the counties of Dade and Barton, relative to “exclusive original jurisdiction,” (Sess. Acts 1865, p. 85, § 6,) and there it was properly ruled that the circuit court had jurisdiction, and the probate court none; and the ruling in that case was placed upon the ground that it was commenced against living men, to recover a personal judgment against them, for a breach of a contract entered into by them, and that case was distinguished from Dodson's case, supra, on the ground that the latter was one not against “living men to recover a personal judgment,” but against administrators, to recover a demand against the estates of those they represented, and...