State v. Canterbury

• Decision Date: 02 April 1907
• Citation: 124 Mo. App. 241,101 S.W. 678
• Parties: STATE ex rel. LANGSTON v. CANTERBURY et al.
• Court: Missouri Court of Appeals

101 S.W. 678

124 Mo. A. 241

STATE ex rel. LANGSTON v. CANTERBURY et al.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

1. EXECUTORS AND ADMINISTRATORS — ACTIONS — JUDGMENT — LIABILITY OF SURETIES.

In an action brought under Rev. St. 1899, § 48 [Ann. St. 1906, p. 352], to compel an administrator after removal to make his final settlement, where the sureties were made parties and duly notified, judgment should be rendered against the administrator and his sureties.

2. JUDGMENT — FINALITY — DETERMINATION AS TO ALL PARTIES.

In an action against an administrator and his sureties, a judgment which does not dispose of the case as to the sureties or take any notice whatever of them, except to recite their appearance, announcement as ready for trial, and the submission of the case to the court, is not a final judgment, and hence the cause is still pending, and should be disposed of by setting aside the judgment, retrying the action, and rendering judgment disposing of the case as to all the defendants.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by the state, on the relation of T. J. Langston, against Sam F. Canterbury and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

W. J. Orr, for appellant.

BLAND, P. J.

On October 27, 1893, defendant S. F. Canterbury was appointed administrator of the estate of Thomas Johnson, deceased, by the probate court of Howell county. The other defendants are sureties on his bond as administrator. For some reason, not stated, Canterbury ceased to be administrator of Johnson's estate, and plaintiff, T. J. Langston, was appointed administrator de bonis non, and under the provisions of section 48, Rev. St. 1899 [Ann. St. 1906, p. 352], commenced a summary proceeding against Canterbury, in the probate court of Howell county, to compel Canterbury to make his final settlement, to which the sureties on his bond were made parties and were duly notified. In due course the cause was appealed to the circuit court, where on a trial de novo the circuit court, by allowing Canterbury credits for the payment of two promissory notes given by Johnson in his life-time, one for $1,000 and one for $1,200, which were not and never were probated against Johnson's estate, found the estate indebted to Canterbury in the sum of $12. Langston appealed the cause to the Supreme Court. The Supreme Court held that Canterbury, as administrator, had no right to pay the notes out of the assets of the estate without they were first probated, and was not entitled to credits therefor, and remanded the cause to the Howell circuit court, with directions to follow the law as declared in the opinion. Langston v. Canterbury, 173 Mo. 122, 73 S. W. 151. After the cause was remanded, to wit, on January 7, 1904, the case was retried to the Howell circuit court, and judgment rendered against Canterbury, as administrator of Johnson's estate, for the sum of $2,399 and $50 costs, and the judgment was certified to the probate court of Howell county, where it was entered of record. The answer of the sureties in the present action denied that they were parties to or bound by the judgment of January 7, 1904, of the circuit court, and alleged that by the proceedings therein they had been released from the payment of said judgment or from any liability on the bond of Canterbury. For an equitable defense, the sureties set up the payment of the two unprobated notes by Canterbury as administrator, alleged that the estate was worth $50,000 over and above all the debts, and that the payment of the two notes was made with the consent and on the advice of the adult heirs of the deceased and the legal distributees of his estate. On proof of this equitable defense being made, the learned trial judge offset the notes against the judgment sued on and rendered judgment for the defendants, from which plaintiff appealed.

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