Stephens v. Bernays

• Decision Date: 23 December 1893
• Parties: Stephens, Receiver, v. Bernays, Executrix, Appellant
• Court: Missouri Supreme Court

24 S.W. 46

119 Mo. 143

Stephens, Receiver, v. Bernays, Executrix, Appellant

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

H. A Loevy for appellant.

(1) The transcript of the judgment was not certified to by the judge of the federal court as expressly required. Revised Statutes 1889, sec. 4881. (2) The United States district court was without jurisdiction. Revised Statutes, U.S. 1878, sec. 563; Railroad v. Gomila, 132 U.S. 484; Du Vivier v. Hopkins, 116 Mass. 125; Pearce v. Calhoun, 59 Mo. 271; Works v. College, 17 Wall. 521; Woerner Am. Law Adm., p. 341. (3) The state probate court was in charge and had jurisdiction of the estate at the time the suit was brought in the federal court and being the first to obtain jurisdiction and possession of the estate the court should not have taken jurisdiction of the suit against the estate. Railroad v. Gomila, 132 U.S. 485; Watson v. Garvin, 54 Mo. 383; Ellis v. Davis, 109 U.S. 498; Union Co. v. Railroad, 6 Bissell, 197; 1 Abbott U. S. Prac. [3 Ed.], side 222, 223; DuVivier v. Hopkins, 116 Mass. 125. (4) The state probate and circuit courts have exclusive jurisdiction to allow claims against the estate of a deceased person. Railroad v. Gomila, 132 U.S. 485; Bauer v. Gray, 18 Mo.App. 174, citing eight decisions of the supreme court of Missouri; Richardson v. Palmer, 24 Mo.App. 487. (5) The judgment of the district court is an absolute nullity. Rentschler v. Jamison, 6 Mo.App. 135. (6) In this suit, on a judgment of a court not a court of record of this state, the whole record of the suit in the district court should have been embraced in the notice to the executrix. Crone v. Dawson, 19 Mo.App. 214; Greenleaf on Evidence, sec. 511. (7) The judgment is not a judgment of a court of this state, but of the federal court, therefore, not of a court domestic to this state, so that ten days' notice of exhibition and presentation for allowance were required, which was not given to the executrix. Revised Statutes, 1889, sec. 196. Such judgment is like that of a sister state. Story Conf. Laws [8 Ed.], 831; Tarbell, v. Griggs, 3 Paige, Ch. 207; Davis v. Bruns, 23 Hun. 648; Tompkins v. Purcell, 12 Hun, 662; McCartney v. Bostwick, 32 N.Y. 53; Freeman on Judgments, sec. 578; Embrey v. Palmer, 107 U.S. 3; McCauly v. Hargroves, 48 Ga. (8) It is of no higher dignity than a simple contract debt and requires the same formal notice and exhibition for allowance and classification as if the demand was based on a simple contract. McElmoyle v. Cohen, 13 Peters (U.S.), 325 (approved 127 U.S. 293, and cited 20 Mo. 316); Harness v. Green's Adm'r, 20 Mo. 316; Gainey v. Sexton's Adm'r, 29 Mo. 449; Crim v. Walker, 79 Mo. 335; Woerner, Am. Law Adm., pp. 776, 777; Revised Statutes, 1889, sec. 4881. The statute providing for classification of judgments, as judgments, applies to judgments of the state courts of this state only. Harness v. Green's Adm'r, 20 Mo. 316; Gainey v. Sexton's Adm'r, 29 Mo. 449; Woerner, p. 776. (9) There was no legal exhibition of the claim. Two things are essential: an exhibition of the demand to the executrix and a notice of presentation to the probate court for allowance. This rule applies to judgments obtained in life time. 2 Woerner, Am. Law Adm., pp. 825, 826; Spaulding v. Suss, 4 Mo.App. 541. There was no legal exhibition of the demand, because the whole record of the federal court was not exhibited to the executrix with the notice. Crone v. Dawson, 19 Mo.App. 214; Greenleaf on Evidence, sec. 511.

OPINION

Macfarlane, J.

This is a claim filed by the receiver of the Fifth National Bank of the city of St. Louis, in the probate court of the city of St. Louis, against the estate of George J. Bernays, deceased, for classification. The claim consists of a transcript of a judgment, of the district court of the United States for the eastern district of Missouri, in favor of plaintiff as such receiver against the defendant as executrix of said estate, on an assessment of thirty-five shares of the stock of said bank which was owned by said deceased at the time of its failure, in November 1887. The judgment was for $ 3,647.58, and directs that the same be certified to the probate court of the city of St. Louis for classification. Notice was served on the executrix nine days before the presentation of the claim for classification.

Defendant filed a motion in the probate court, appearing only for that purpose, to dismiss the cause on the ground that ten days' notice had not been given. This motion was sustained and during that term of court, but more than ten days after the judgment dismissing the case, plaintiff appealed.

I. The allowance and classification of the judgment as a demand against the estate of George J. Bernays, deceased, was resisted in the first instance, on the ground that ten days' previous notice that the same would be presented to the probate court for allowance had not been given the executrix. It was admitted that only nine days' notice was in fact given but, we take it, that, whatever merit may have been in the point in the probate court where only a special appearance was made, it was waived by a general appearance of the executrix in the circuit court and a submission to its jurisdiction by a trial of the case on its merits. Moreover, if this demand was established by the judgment of "a court of record" within the meaning of section 190, Revised Statutes, no such notice was required. The notice required by section 196 does not apply to the presentation to the probate court of a judgment for classification. The demand in that case is established by the judgment. When a person desires to establish a demand against an estate in the probate court, ten days' notice of his intention to do so must be given, The notice takes the place of a summons in another court of record. The service of a summons in another court of record takes the place of the notice otherwise required. Wernse v. McPike, 100 Mo. 476, 13 S.W. 809, and cases cited.

II. It is further insisted that the United States district court did not have jurisdiction of the subject-matter of the suit and the judgment was therefore void and was improperly classified without having first been legally established. The contention on this proposition is, that the probate court and the circuit, and other courts of record, under the law of the state, having cognizance of the subject-matter of such actions, alone have jurisdiction to establish claims against the estate of deceased persons.

The statute provides that "any person having a demand against an estate may establish the same by the judgment or decree of some court of record in the ordinary course of proceedings." Revised Statutes, section 190. The judgment rendered is not to be enforced by execution from the court in which it is rendered. It merely becomes an established demand which should be classified when a transcript thereof is exhibited to the probate court. The jurisdiction of probate courts to administer the estate is not in the least interfered with.

The statute does not limit ...