Strode v. Gilpin

• Decision Date: 15 March 1905
• Citation: Strode v. Gilpin, 86 S.W. 77, 187 Mo. 383 (Mo. 1905)
• Parties: STRODE, Public Administrator, in charge Estate of CHRIS SHARP, v. GILPIN, Appellant
• Court: Missouri Supreme Court

86 S.W. 77

187 Mo. 383

STRODE, Public Administrator, in charge Estate of CHRIS SHARP, v. GILPIN, Appellant

Supreme Court of Missouri, First Division

March 15, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Wm. Zachritz Judge.

Affirmed.

Campbell & Thompson for appellant.

(1) The court had no jurisdiction in this case for the reason that when Gilpin filed his affidavit and bond as surviving partner, and the probate court approved said bond, there was necessarily a finding and judgment by the probate court that Charles S. Gilpin was the surviving partner of the Union Station Cigar Company, and this judgment can not be collaterally attacked. In re Estate of Alice C Judy, 166 Mo. 15; Covington v. Chamberlain, 156 Mo. 587; Sherwood v. Baker, 105 Mo. 475; Johnson v. Beaseley, 65 Mo. 250; Camden v. Plain, 91 Mo. 129; Rottman v. Schmucker, 94 Mo. 139; 1 Woerner, Admr., secs. 328-330. And thereafter Gilpin's relation to said partnership estate was the same as though he had taken charge of it under letters of administration, and his authority to hold said property as surviving partner can not be collaterally attacked. R.S. 1899, sec. 67; 2 Black on Judgments, sec. 639; Vermillion v. St. Clare, 89 Mo.App. 55; 1 Woerner, Admr., sec. 156. (2) The circuit court has no jurisdiction to try the question of partnership presented in this case for the reason that, as Gilpin had given his bond as surviving partner for the purpose of administering the estate of the Union Station Cigar Company and said bond had been approved by the probate court, Gilpin and the property of said firm had passed under the exclusive original jurisdiction and control of the probate court, and the question of partnership here presented is a question the decision of which must be originally made by the probate court. It is a matter "pertaining to probate business," and over all matters pertaining to probate business the Constitution and laws of the State have given exclusive jurisdiction to the probate court. Const., art. 6, sec. 34; R.S. 1899, sec. 1753; State ex rel. v. Withrow, 141 Mo. 69; James & Dixon v. Jewett, 21 Mo. 538; Ensworth v. Curd, 68 Mo. 282; Caldwell v. Hawkins, 73 Mo. 451; Cook v. Lewis, 36 Mo. 340; Putnam v. Parker, 55 Me. 235; Lietman's Executor v. Lietman, 149 Mo. 117; 1 Woerner on Administration, p. 300. (3) Gilpin, having given bond as surviving partner satisfactory to the probate court, took the property of the partnership estate in charge, and said property then became in custodia legis and could not be taken out of his possession until the probate court, in the exercise of its general jurisdiction over the administration of said estate, should remove said Gilpin and revoke his authority, and require him to turn over said property to Sharp's administrator. Bank v. Field, 156 Mo. 310; Drake on Attachments, sec. 251; White v. Schloerb, 178 U.S. 542. (4) Plaintiff's plain, adequate and complete remedy was to apply to the probate court to revoke Gilpin's authority and require him to turn over to plaintiff the assets of the Union Station Cigar Company, and upon that court's refusal so to act to appeal. 1 Woerner on Administration, sec. 299; 1 Woerner, marg. pp. 1203, 1204; State ex rel. v. Withrow, 141 Mo. 69; Vermillion v. St. Clare, 89 Mo.App. 55; R.S. 1899, secs. 278, 279.

Johnson, Houts, Marlatt & Hawes for respondent.

(1) There was no adjudication of the question of partnership in the probate court; hence the question was not res adjudicata, but was open to inquiry in this proceeding. (a) At common law, upon the death of a member of a partnership, the survivor or survivors had the right to administer as surviving partner or partners, on the partnership estate. No one else had the right and it was a duty as well as a right; and they administered as survivors, not as administrators. Lindley on Partnership (2 Am. Ed.), p. 591; Emerson v. Senter, 118 U.S. 8; Bates on Partnership, sec. 715; Woerner on Administration, sec. 124; Easton v. Courtright, 84 Mo. 31; 22 Am. and Eng. Ency. Law (2 Ed.), 220. (b) The statutes have not changed nor taken away this right of a surviving partner to administer as surviving partner, and his rights and status as surviving partner are fixed not by any appointment or act of the probate court, but by devolution of law. R.S. 1899, secs. 56, 57, 59, 61, 64; Green v. Virden, 22 Mo. 511; Bredow v. Mutual Savings Institution, 28 Mo. 185; Easton v. Courtright, 84 Mo. 31; Denny v. Turner, 2 Mo.App. 55; Hargadine v. Gibbons, 45 Mo.App. 469; Holman v. Nance, 84 Mo. 678; Crook v. Tull, 111 Mo. 289; Hargadine v. Gibbons, 114 Mo. 565; Goodson v. Goodson, 140 Mo. 215; Hays v. Odom, 79 Mo.App. 428; 1 Woerner, Administration, par. 130. (c) The status of a surviving partner being fixed by law, there is nothing for a probate court to pass upon in the inception of partnership administration, and nothing is res adjudicata in this case by reason of any act of that court. (2) If the probate court could by its action confer upon surviving partners the right to administer upon partnership assets, then under our statute the existence of a partnership would be a jurisdictional fact and open to inquiry at any time. The analogy of the question of death being jurisdictional is perfect. Ins. Co. v. Tisdale, 91 U.S. 238; Scott v. McNeal, 154 U.S. 49; Griffith v. Frazier, 8 Cranch 9; 11 Am. and Eng. Ency. Law (2 Ed.), 759; Woerner, Administration, par. 207; 1 Freeman on Judgments, p. 186. Another analogous jurisdictional question is that of property being within the jurisdiction of the court granting letters; if not, the letters are void. Woerner, Administration, par. 205; Miller v. Jones' Admr., 26 Ala. 247; Christy v. Vest, 36 Iowa 285. (3) Defendant forfeited the right to claim that the question of partnership was res adjudicata by voluntarily going into the question as an open one on the trial. He can not rely upon a judicial determination of an issue by way of an estoppel and also upon proof of the facts upon which the determination was based. Megerle v. Ashe, 33 Cal. 84; House v. Lockwood, 17 N.Y.S. 817; Seymore v. Hubert, 92 Pa. St. 501; Seckel v. Norman, 78 Iowa 261; Bast v. Hysom, 6 Wash. 171; Donnell v. Wright, 147 Mo. 648; Clark v. Bettelheim, 144 Mo. 270; Van Fleet, Former Adjudication, p. 509; McArthur v. Oliver, 53 Mich. 302. (4) Having assumed in the trial court the position that the question at issue was whether or not a partnership existed, defendant can not shift his position on appeal. He can not, after leading counsel and trial court to try the issue of partnership as an open question, and after being beaten on that issue, shift his position on appeal, and claim that the question was previously adjudicated. Bray's Admr. v. Seligman's Admr., 75 Mo. 29; Hall v. Goodnight, 138 Mo. 576; Hill v. Drug Co., 140 Mo. 439; Stewart v. Outhwaite, 141 Mo. 570; Estes v. Hill, 163 Mo. 395; Mirrielees v. Railroad, 163 Mo. 486. (5) The further question of the ownership of particular property was not and could not be decided at the threshold of administration. Property rights are never adjudicated nor status of property fixed by grant of letters of administration. That is left to a court of general jurisdiction -- in this State the circuit court. Woerner, Administration, pars. 151, 263; Grimes v. Talbert, 14 Md. 169; Estate of Nugent, 77 Mich. 500; Estate of McCarthy, 81 Mich. 460; Biemuller v. Schneider, 62 Md. 547; Cayler v. Cayler, 4 Redf. (N.Y.) 305; Marston v. Paulding, 10 Paige Ch. 40; Wadsworth v. Chick, 55 Tex. 241. There is nothing in the contention that the property was in custodia legis; administrators may be guilty of conversion and may be sued in replevin, trover or conversion for property which does not belong to them, just as other persons having illegal possession of property, and the proper forum to try those property rights is the circuit court. Cobbey, Replevin, par. 432; Rose v. Cash, 58 Ind. 278; Marston v. Paulding, 10 Paige Ch. 40; Cayler v. Cayler, 4 Redf. (N.Y.) 305; 24 Am. and Eng. Ency. Law (2 Ed.), 505; Brammell v. Cole, 146 Mo. 70.

OPINION

BRACE, P. J.

On the eighth of February, 1901, one Chris Sharp of the city of St. Louis died intestate, and on February 11, 1901, Gerrard Strode, public administrator of the city of St. Louis, took charge of his estate under the statute, and afterwards on the sixteenth of March, 1901, instituted this suit against the defendant Charles Gilpin for the conversion of certain assets, alleged to be the property of said deceased, of the value of $ 13,831.78.

On the fifteenth of February, 1901, the defendant Charles S. Gilpin filed bond in the probate court of the city of St Louis as surviving partner of the said Sharp deceased, which was approved by the said court, and in his answer to the plaintiff's petition admitted possession of the assets and claimed the same as surviving partner of the said Sharp, deceased. Issue was joined by reply. The case was tried by the court without a jury. The issues were found for the plaintiff. Judgment was rendered in his favor against the defendant for the sum of $ 14,564.85, and the defendant appealed.

The assets in question consisted of:

Cash on hand

$ 1,500.23

Cash in American Exchange Bank.

9,021.19

Goods and chattels of the value of

3,310.36

Total

$ 13,831.78

These assets were, nominally, the assets of the "Union Station Cigar Company," under which name a business had been carried on at the Union Station in the city of St. Louis from April 1, 1895, until the day of the death of said Sharp February 8, 1901.

The evidence for the plaintiff tended to prove that the said Sharp was in fact "The Union Station Cigar Company." That he furnished all its capital, received its profits, bore its losses, and at the time of his death was...