State v. Nolan

• Decision Date: 27 January 1890
• Parties: STATE ex rel. BELL, Public Administrator, v. NOLAN et al.
• Court: Missouri Supreme Court

12 S.W. 1047

99 Mo. 569

STATE ex rel. BELL, Public Administrator, v. NOLAN et al.

Supreme Court of Missouri.

January 27, 1890.

PUBLIC ADMINISTRATOR — BOND — RELEASE OF SURETY.

1. Rev. St. Mo. 1879, § 307, making public administrators "subject to the same duties, penalties, provisions, and proceedings as are enjoined upon or authorized against executors and administrators by this chapter, as far as the same may be applicable," does not exclude public administrators and their sureties from the benefits of chapter 66, section 3906 et seq., providing for the discharge of sureties on official bonds, and limit them to the provisions for sureties on executors' and administrators' bonds.

2. A pleading, alleging an application for discharge as surety, made "after due notice as required by law," and setting out the record of the proceedings, which recites the presence of the principal on the hearing of the application, shows proper notice to the principal.

3. If Rev. St. Mo. 1879, § 1044, requiring an order for a special term of a court to be entered by the court in term-time, applies to probate courts, it will be presumed, in the absence of any showing on the subject, that a special term of that court was held in pursuance of an order so entered.

4. Under Rev. St. Mo. 1879, § 3774, providing that no exceptions shall be considered on appeal except those that have been expressly decided by the lower court, and section 3775, providing that judgments shall not be reversed except for error materially affecting the merits of the action, a judgment overruling a demurrer to the answers of some of the defendants will not be reversed because of the omission to render judgment against a defendant in default; the plaintiff not having indicated any wish to take judgment against that defendant.

Appeal from circuit court, Jackson county.

Plaintiff brought this action to recover for an alleged breach of the official bond of the former public administrator while in charge of the same estate. Defendants are the principal in that bond and his sureties. The defendant principal entered his appearance, but made no defense. The sureties filed answers to the effect that prior to the alleged breach they had been released from subsequent liability as sureties by proceedings under chapter 66, Rev. St. 1879, § 3906 et seq. The answers state the particular steps taken in that behalf, and recite the record entries of the probate court of Jackson county, referred to in the opinion, which are as follows:

"Jas. Horrigan vs. George N. Nolan, Pub. Admr., &c. December 7th, 1881. Now at this day comes the petitioner, by his attorney, as well as the defendant, by his attorney, and, it appearing to the satisfaction of the court that the petitioner, James Horrigan, has, since he became one of the sureties of the defendant on his official bond, removed from the county of Jackson, it is ordered that the prayer of the petitioner be granted, and that the said defendant, as public administrator, as aforesaid, be required to file a new bond, as such public administrator, in the sum of twenty thousand dollars, ($20,000,) on or before the 7th day of February, 1882."

"Special term, Feb. 7, 1882. Now at this day comes O. P. W. Bailey, judge of the probate court of Jackson county, Missouri, and orders that a special term of said court be held on this day, and at which said special term the following proceedings were had and made, to-wit: In the matter of the new bond of George N. Nolan as public administrator of Jackson county. Now at this day the court approves the new bond of said public administrator (heretofore filed) herein, in the sum of twenty thousand dollars, conditioned as the law directs, with John Endres, Joseph H. Green, Patrick Mugan, Henry T. Hereford, and D. S. Self as securities thereon. Ordered that court do now adjourn. O. P. W. BAILEY, Judge."

To these defenses plaintiff demurred, unsuccessfully. He then elected to stand by the demurrers, and appealed.

Rev. St. Mo. 1879, sec. 1044. "Special or adjourned sessions of any court may be held in pursuance of such proclamation, or in continuation of the regular term, when so ordered by the court in term-time; the order being entered in its records." Sec. 3774. "No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court." Sec. 3775. "The supreme court shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action."

Wash. Adams, for appellant. A. M. Allen, for respondents.

BARCLAY, J., (after stating the facts.)

The defense of the sureties on the original bond of the public administrator is, in substance, that one of them, in November, 1881, filed in the probate court of Jackson county his petition, duly verified, for discharge from further liability because of his removal from the county; that after "due notice, as required by law," to the administrator, the application was heard, and resulted in an order of that court granting the application, and requiring the administrator to file a new bond on or before February 7, 1882. Before that date the new bond was approved and filed in compliance with the former order, if the probate record of February 7, 1882, is to be taken as valid, respecting which more will be said later on. This outline of the defense is sufficient to show the principal issue in the case.

Plaintiff contends that chapter 66, Rev. St. 1879, entitled "Of Sureties, and Their Discharge," has no application to public administrators. The trial court held that it did apply to such officers. Several sections of our statutes bear more or less directly on the question thus presented. In the chapter on "Administration" we find provisions making the public administrator of Jackson and other counties an elective officer, empowering the court to demand of him, from time to time, such additional security as the condition of the estates in his charge may require, (Rev. St. 1879, § 303,) and further declaring that, "in addition to the provisions of this article, he and his securities shall have the same powers as are conferred upon, and be subject to the same duties, penalties, provisions, and proceedings as are enjoined upon, or authorized against, executors and administrators by this chapter, so far as the same may be applicable." Rev. St. 1879, § 307. We read...