Stiles v. Smith

• Decision Date: 28 February 1874
• Citation: 55 Mo. 363
• Parties: ELIZA STILES, Administrator of the estate of ANDREW J. STILES, dec'd, Respondent, v. FREDERICK W. SMITH, Appellant.
• Court: Missouri Supreme Court

55 Mo. 363

ELIZA STILES, Administrator of the estate of ANDREW J. STILES, dec'd, Respondent,

v.FREDERICK W. SMITH, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Common Pleas Court.

Loan & Van Waters, for Appellant.

I. The statute of limitations must be pleaded; (McNair vs. Lott, 25 Mo., 182; Tramell vs. Adam, 2 Mo., 155; Benoist vs. Darby, 12 Mo., 196; Whittelsey's Mo. Pr., 227; Sedg. Const. & Stat., Law, 35.) otherwise it cannot be invoked.

II. The statutory bar under the administration law cannot avail the plaintiffs in any case, unless it appears that two years have elapsed since the grant of letters of administration upon Stiles' estate, and that notice thereof has been given as required by law. (Wiggins vs. Lovering, 9 Mo., 262; Bryan vs. Mundy, 17 Mo., 556; Clark vs. Collins, 31 Mo., 260.) Under the general limitation law the demands are not yet barred.

Allen H. Vories, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

The administrator of A. J. Stiles brought his action in the Court of Common Pleas, against the defendant to recover certain debts alleged to have been due the deceased in his life-time. The petition contained two counts, which were both founded on work and labor performed and materials furnished by the deceased for and on behalf of the defendant, and at his special instance and request. The defendant filed his answer denying most of the allegations in the petition, and then set up as a further defense to each count, by way of counter-claim, separate debts which it was alleged were due and owing by the deceased at the time of his death to the defendant. At the trial the defendant offered evidence tending to prove the counter-claim set out in his answer, to which the plaintiff objected, and assigned as grounds of objection: 1st. That the court had no jurisdiction of the matter contained in the counter-claims, and that they were barred by the statute of limitations; and 2nd. That the counter-claims as pleaded did not sufficiently state the terms of the contracts out of which they arose, and that the defendant had not filed his affidavit and had not been sworn, to the purport that he had given credit to the estate of Stiles for all payments and set-offs to which the estate was entitled. The court sustained the objection and the defendant excepted, and a judgment having been rendered for the plaintiff, the defendant has brought the case here by appeal.

The objection raised to the jurisdiction is based on the act of March 19th 1866, (Sess. Acts 1865-6, p. 83,) which provides for the organization of Probate Courts in certain counties, Buchanan county being one of the number. The 6th section of that act gives the Probate Court exclusive jurisdiction “to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of their testator or intestate.” * * * In actions or proceedings brought against the executor or administrator this act would prevail, and the plaintiff would not be entitled to proceed in any other forum; but the present case does not come within the provisions of the law. The defendant is not the party prosecuting the suit, he is not voluntarily proceeding against the estate, as was contemplated by the act; but he is involuntarily brought into another court which unquestionably has jurisdiction over the case, and when he is brought there, he certainly has the right to make any defense which he may have to the action pending against him.

The question of the statute of limitations presents a point of more difficulty. The statute provides that all demands against the estate not exhibited within two years shall be forever barred, except as to persons who are under certain disabilities. (1 Wagn. Stat., p. 102, § 2.) But in order to have this effect, it will be necessary for the administrator before he can avail himself of the lapse of time as a bar to a demand against the estate of his intestate, to show that he has given notice of his letters in the manner, and within the time prescribed by law. (Wiggins vs. Lovering, 9 Mo., 262; Montelius vs. Sarpy, 11 Mo., 237; Blackwell vs. Ridenhour, 13 Mo., 125; Bryan vs. Mundy, 17 Mo., 556; Polk vs. Allen, 19 Mo., 467; Clark vs. Collins, 31 Mo., 260.)

In Wiggins vs. Lovering, supra, it is expressly adjudged, that an executor or administrator who relies on the bar created by the special statute of limitations, must aver in his plea the fact of the notice having been given, and prove it on the trial. Nothing of the kind was done in this case. The defendant set up his counter-claims as a defense to the ation, and the administrator in his replication denied their justness; but he made no mention of the statute of...