Strobel v. Clarke

• Decision Date: 03 December 1907
• Citation: 106 S.W. 585,128 Mo. App. 48
• Parties: STROBEL v. CLARKE et al.
• Court: Missouri Court of Appeals

106 S.W. 585

128 Mo. A. 48

STROBEL v. CLARKE et al.

St. Louis Court of Appeals. Missouri.

December 3, 1907.

Rehearing Denied January 7, 1908.

1. PROCESS — RETURN OF SHERIFF — CONCLUSIVENESS.

A sheriff's return of service of notice of a motion in the probate court by the public administrator to compel another, as executor, to make final settlement of his accounts that personal service was had, is conclusive, unless the public administrator either procured the sheriff to make a false return, or, knowing that a false return had been made, took advantage thereof to obtain judgment by default.

2. JUDGMENT — EQUITABLE RELIEF — CONCLUSIVENESS OF RECORD.

Where a court has jurisdiction of the subject-matter and of the parties, its judgment, in the absence of fraud in procuring it, imports absolute verity, and cannot be attacked by evidence outside the record.

3. SAME — CONCLUSIVENESS — EVIDENCE TO CONTROL.

The judgment on a motion in the probate court by the public administrator to compel another, as executor, to make final settlement of his accounts, recited that the court found that the executor had in his hands, as belonging to the estate, an amount named, for which judgment was entered against him, and it did not appear that the court included therein a debt of the executor to the decedent, or determined the issue of whether executor had concealed assets which had not been inventoried by him as executor and included them in the judgment. Held, that it was not competent, by oral testimony or other evidence outside the record of the proceedings in the probate court, to prove, for the purpose of showing that the court had exceeded its jurisdiction and thereby impeaching the validity of its judgment, that the court did hear evidence as to the indebtedness of executor to decedent and as to uninventoried assets and did adjudicate thereon and include them in the judgment; the proceeding by the public administrator being within the jurisdiction of the probate court, and it being entitled to the same presumptions of the regularity of its proceedings as a court of general jurisdiction.

Appeal from Circuit Court, City of St. Louis; Matt G. Reynolds, Judge.

Action by John Strobel against Patrick H. Clarke and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Bass & Brock, for appellant. John S. Leahy, for respondents.

GOODE, J.

This is an action in the nature of a suit in equity instituted to set aside and hold for naught a judgment of the probate court of the city of St. Louis to restrain the defendant Patrick H. Clarke, sheriff of said city, from paying over money which had been collected on said judgment. The cause in which the judgment of the probate court was entered was a proceeding instituted therein by Henry Troll, public administrator in charge of the estate of William A. Baier, deceased, against the plaintiff, John Strobel, to compel the latter, as executor of the will of said Baier, to make final settlement and turn over to Troll the assets of the estate of the deceased. Baier died July 17, 1905, leaving what purported to be a last will in which all his property, real and personal, was bequeathed to plaintiff and his wife, Molly Strobel, and plaintiff was appointed executor without bond. After the will was probated, letters testamentary were issued, and plaintiff took possession of the assets of the estate. At a still later date the heirs of William A. Baier began an action in the circuit court against plaintiff and his wife, Molly Strobel, to set aside the alleged last will of Baier. On the institution of this action to contest the will plaintiff was removed from the office of executor. Pending the contest Henry Troll, public administrator, was put in charge of the estate, and plaintiff was ordered to turn over to said Troll the assets. Troll is still in charge. It appears that Strobel did not turn over the assets to him, and on December 28, 1905, Troll, as public administrator in charge of the estate, filed a motion in the probate court setting out that he had been appointed administrator pending the will contest, that Strobel had been previously granted letters testamentary as executor, and that his authority had been revoked pending the action to contest the will, but nevertheless Strobel had made no settlement with Troll, administrator pendente lite, and had not turned over any of the assets. The prayer of the motion was that the court would compel Strobel as executor to make final settlement of his accounts, to the end that the court might ascertain the amount of money and property which came into his hands as executor and remained unaccounted for, and enter judgment in favor of petitioner Troll as administrator in charge of Baier's estate, for said assets and personal property. Process was issued by the probate court, commanding the sheriff to notify Strobel to appear before the judge of the probate court on the first day of the ensuing term, to wit, the first Monday in March, 1906, to answer in the proceeding. Said process was returned executed by delivering a true copy to Strobel January 26, 1906, in the city of St. Louis. The return was signed "Patrick H. Clarke, Sheriff," by "John Ehrhardt, Deputy." It is contended by the plaintiff in the present action that in point of fact he never was served with the notice, and that the return was false. That is one ground on which he asks to have the judgment of the probate court set aside. The proceeding by Troll as public administrator in charge of the estate of William A. Baier, deceased, against Strobel as executor of the will of said Baier, resulted in a judgment by default in the probate court. Said judgment recited that, Strobel having made default, the court proceeded to ascertain the amount of money, the quality and kinds of real and personal property, and all the rights, debts, evidences of debts and papers of every kind of said William A. Baier, deceased, in the hands of Strobel as executor, or which came into his hands and remained unaccounted for at the time of the suspension of his letters testamentary; further, that the court, having heard and duly considered the petition of Troll as public administrator and the evidence adduced, found that Strobel at the time of the suspension of his letters had in his hands as executor of said last will and belonging to the estate the sum of $935 in money. It was therefore considered and adjudged by the probate court that Troll have and recover from said Strobel the sum of $935, together with costs and have execution therefor. No appeal was prosecuted from this judgment; but this fact is sought to be explained away in the petition in the present case on the ground that, as plaintiff was not served with notice, he had no knowledge of the judgment in time to take an appeal; that, in fact, he had no knowledge of it until execution had been issued against him, which was after the time for appealing had passed. It is charged in the bill that the defendant Patrick H. Clarke, as sheriff, caused such execution to be levied on the business property of plaintiff, and the latter, in order to prevent his business, which was conducting a grocery store, from being stopped by sale of the property, paid to the...