Tevis v. Tevis' Adm'r

• Decision Date: 31 March 1856
• Citation: 23 Mo. 256
• Parties: TEVIS, Appellant, v. TEVIS' ADMINISTRATOR, Respondent.
• Court: Missouri Supreme Court

23 Mo. 256

TEVIS, Appellant,

v.TEVIS' ADMINISTRATOR, Respondent.

Supreme Court of Missouri.

March Term, 1856.

1. A. commenced suit against B., the administrator of C., on a promissory note, of which C. was maker. D. and E., indorsers of said note, were made co-defendants. On the trial, such instructions were given as precluded a recovery against the indorsers, or rendered it doubtful; whereupon plaintiff took a non-suit, and then, after the expiration of a year from the date of the first letters of administration, presented his claim to the Probate Court for allowance, as a demand against the estate of C. The demand was allowed, and placed, against the objection of A., in the sixth class of claims instead of the fifth. In the suit of A. against B. service of process was had upon B. within a year from the date of the first letters of administration. Held, that this demand should have been classed in the fifth class of claims. (SCOTT, J., dissenting.)

Appeal from St. Louis Circuit Court.

N. E. & G. P. Strong, for appellant.

P. B. Garesché, for respondent.

RYLAND, Judge, delivered the opinion of the court.

The only point in this case regards the proper classification of the allowance in favor of the plaintiff against the estate. The record shows that letters of administration upon the estate of Henry L. Tevis, deceased, were granted to C. C. Sanders on the 11th day of April, 1853; that in October, 1853, John Tevis, the present plaintiff, instituted a suit in the Circuit Court of St. Louis county, returnable to the November term of said court in the same year, upon the same note which is the foundation of this present action; that a summons, with a copy of the note, was duly served upon the administrator, Sanders, on the 18th day of October, 1853; that the members of the firm of Tevis, Sons & Co., the indorsers of the note, were also joined as defendants to the suit in the Circuit Court; that at the trial of the suit in May, 1854, the Circuit Court gave instructions which either precluded a recovery against the indorsers or rendered it very doubtful. The plaintiff took a non-suit; and afterwards moved to set it aside, which motion was overruled; exceptions were filed; and there the matter rested as to the indorsers, Tevis, Sons & Co. There was no dispute as to the liability of the estate of H. L. Tevis, the maker of the note. The plaintiff then presents the note as a demand against the estate of Henry L. Tevis, in the Probate Court of St. Louis county, at the September term, 1854; the administrator appeared in open court and waived notice, and the claim was allowed and placed in the sixth class. The plaintiff appealed from the judgment and classification of the Probate Court to the Circuit Court. His demand was again allowed and again placed in the sixth class by the Circuit Court. To the action of the Circuit Court, in placing his demand in the sixth class of claims, the plaintiff excepted, and has appealed to this court.

This point depends upon the construction of our statute of administration, the 4th and 5th sections of the 4th article of which are as follows: Sec. 4. “All actions commenced against such executor or administrator, after the death of the deceased, shall be considered demands legally exhibited against such estate, from the time of serving the original process on such executor or administrator.” Sec. 5....