State v. Henderson

• Decision Date: 12 June 1901
• Citation: 164 Mo. 347,64 S.W. 138
• Parties: STATE ex rel. GREEN v. HENDERSON, Probate Judge, et al.
• Court: Missouri Supreme Court

64 S.W. 138

164 Mo. 347

STATE ex rel. GREEN v. HENDERSON, Probate Judge, et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

EXECUTORS AND ADMINISTRATORS — DISTRIBUTION — NOTICE — APPEAL — CERTIFICATION OF RECORD — ENTRY OF JUDGMENT.

1. An executor presented his final settlement to the probate court, which was approved and passed, and the executor's attorney was so informed, but understood that the court meant by the word "passed" to continue the matter until the next term. The decision was entered as a judgment of the court. An appeal was subsequently taken. Held, that the contention that there had been no judgment on the final settlement from which an appeal could be taken was without merit.

2. On appeal from an order of the probate court to the circuit court, a statutory provision requires the clerk of the circuit court, after a trial de novo, to certify a transcript of the record and proceedings and the original papers back to the probate court. A circuit clerk sent a certified copy of the judgment of the circuit court in the matter, together with the original probate court papers, back to that court, and the judgment contained an order directing the clerk to so certify it. Held, that the certification was sufficient to repossess the probate court of the case.

3. Under Rev. St. 1899, § 243, providing that each person entitled to distribution or partition, not applying therefor, shall be notified in writing of such application 10 days before any such order shall be made, an executor is not entitled to a written notice of an application for distribution of funds of an estate in his hands, such statute having reference only to persons entitled to a share in the distribution.

4. The fact that when an application for distribution was heard and taken under advisement by the court the judge promised to notify the executor's attorney if the order was made, and forgot to do so, will not invalidate the judgment.

5. The fact that a judgment of distribution of an estate, rendered on the last day of a term, was not actually entered of record until the following term, but, when entered, appeared in its proper place in the court records, and as of the day of rendition, will not render the judgment invalid.

In banc. Petition for a writ of prohibition by the state, on the relation of Charles Green, executor, against William W. Henderson, judge of the probate court of the city of St. Louis, and another. Writ denied.

M. Kinealy, T. J. Rowe, and Kinealy & Kinealy, for relator. James P. Maginn and Wm. F. Woerner, for respondents.

VALLIANT, J.

This is an original proceeding, in which a writ of prohibition is sought against the probate court of the city of St. Louis to prevent the enforcement of an order of distribution against the relator, as executor of the will of Patrick J. Burke, deceased. The petition states that Patrick J. Burke died in St. Louis, leaving a will disposing of real and personal estate, in which the relator was named as executor; that the will was duly probated, and relator qualified as executor in the probate court of St. Louis; that at the September term, 1899, relator, having previously given the notice required by law, presented his final settlement as executor, in reference to which the court, on the last day of the term, made an order continuing the matter until next term, and thereupon adjourned until court in course; that in the vacation of the court immediately following, the clerk, without any authority therefor, and without relator's knowledge, entered upon the records of the court what in form was a final judgment approving the final settlement, and a finding that the executor had in his hands $3,530.85 in cash and certain stocks, etc.; that afterwards, December 1, 1899, certain papers were filed in the circuit court, which were in form an appeal by one of the legatees in the will from that supposed judgment, and which, being duly docketed, came on for trial in the circuit court, which trial resulted in a finding and judgment that the executor had in his hands, belonging to the estate, $6,510.82 in cash, besides the stocks, etc.; that relator filed his motion for a new trial, which was overruled, and took an appeal to this court, where the cause is now pending; that no transcript of the record or proceedings of the circuit court was certified to the probate court, nevertheless the last-named court, on July 14th, the last day of its June term, 1900, without notice to relator, rendered a judgment against him, directing a distribution of $5,000 among the legatees under the will; that this judgment was not entered on the records by the clerk until the 5th day of September, which was during the following September term; that relator knew nothing of the judgment until the beginning of the September term, when his attention was drawn to it by a notification to his attorney that a motion for execution would be made in behalf of one of the distributes; that was before the judgment had in fact been entered by the clerk; that upon this information relator appeared before the probate court at the opening of the September term, and presented his petition to set aside the order of distribution upon the ground that the court was without jurisdiction, the proceedings in the circuit court not having been certified to probate court, and relator having had no notice of the motion for an order of distribution, and the order was unjust in that it did not give relator credit for certain amounts that he was entitled to, — but the court denied relator's petition, and proceedings to enforce the order of distribution are now impending. The petition then goes on to state that the relator next applied to the circuit court by petition for a writ of prohibition in like terms as are herein set out, whereupon, a rule to show cause having been made, the judge and clerk of the probate court made their return, and a trial was had in the circuit court, upon the conclusion of which relator asked an instruction to the effect that he was entitled to a writ of prohibition as prayed, which the court refused, and thereupon relator took a nonsuit, with leave, and filed a motion to set the same aside, which the court overruled; that then relator presented a like petition to the St. Louis court of appeals, which that court refused to entertain upon the ground that it had no jurisdiction because the judge of the probate court was a state officer. Then the relator filed this petition in this court.

Respondents, in their return, deny that the probate court, at the September term, 1899, continued the matter of the final settlement, and aver, on the contrary, that at that term the relator presented his final settlement as stated, which was examined and considered by the court, and approved, and the final judgment rendered, which was, after the adjournment of the court, entered on the records in due form by the clerk; that when relator took his appeal from the judgment of the circuit court he gave no appeal bond, and therefore that judgment was not superseded. They aver that a copy of the judgment of the circuit court was duly certified to the probate court, and the probate court was lawfully possessed of the case when it made the order of distribution; deny that relator had no notice of the application for the order of distribution, and aver that he was present in the probate court, by his attorney, on the day the motion was heard, and resisted the same upon all the grounds he now urges; that the legatees were present by their attorneys, and the cause was heard in due form by the court on July 7, 1900, and taken under advisement until July 14th, when the judgment was rendered by the court, and a memorandum thereof given by the court to the clerk, to be entered in the record, and the same was duly entered in the records of the court after its adjournment for the term. They deny the averments of the petition in relation to certain credits which relator claims are due him; aver that relator is insolvent, and has given no bond as executor, and has maladministered the estate; and they plead the proceedings in the prohibition case in the circuit court as res adjudicate of the matter now complained of.

The testimony shows that the executor presented his final settlement to the probate court on the last day of the September term, 1899; that the court examined it, approved it, and passed it as a final...