The State ex rel. Richardson v. Withrow

• Court: Missouri Supreme Court
• Writing for the Court: Goode, Special Judge. Per Curiam.
• Citation: The State ex rel. Richardson v. Withrow, 41 S.W. 980, 141 Mo. 69 (Mo. 1897)
• Decision Date: 17 July 1897
• Parties: The State ex rel. Richardson, Administrator for Dickson et al., v. Withrow et al., Judges of the Circuit Court of St. Louis

41 S.W. 980

141 Mo. 69

The State ex rel. Richardson, Administrator for Dickson et al., v. Withrow et al., Judges of the Circuit Court of St. Louis

Supreme Court of Missouri

July 17, 1897

Prior to the twenty-sixth day of January, 1871, John J. Murdock and Charles K. Dickson were partners in the city of St. Louis doing business under the name and style of Murdock & Dickson. On that day the firm was dissolved by the death of Dickson. On the twenty-second day of March, 1871, Murdock, the surviving partner, took charge of the partnership estate and gave bond in the probate court in the sum of $ 125,000, with Barton Bates and James B. Eads as sureties. Murdock continued to act as administrator of the partnership estate until the twentieth day of November, 1873, making in the interim two annual settlements. These show demands presented and allowed against said estate to the amount of $ 20,674.66. The second annual settlement showed a balance of assets in the hands of Murdock of $ 97,903.25 and that he was chargeable with a further sum of $ 20,650. It also appears that at the time of filing the inventory, the partnership estate was indebted to the estate of Charles K. Dickson in the sum of more than $ 80,000.

On the twentieth day of November, 1873, the probate court of St Louis made an order requiring Murdock to give a new bond in the sum of $ 125,000, with other and further security to be approved by said court with the proviso that if he failed to give such additional bond and security in ten days his authority as surviving partner should be revoked and from that time cease. Murdock never gave this bond, nor were any further proceedings had in the probate court in the matter of the estate of Murdock & Dickson. The only entry thereafter appearing was in the following words on the index records of the court after the index of the estate of Murdock & Dickson "Finally settled December term, 1873." It is admitted that the said partnership estate was never finally settled and that the said entry was made without authority by one John W. Gutting, deputy clerk of the probate court at or about the time of the revocation of Murdock's authority to administer.

On October 14, 1873, John J. Murdock executed a deed of assignment to John G. Priest, for himself individually and as survivor of the firm of Murdock & Dickson, by which he undertook to convey to said Priest as assignee all his own property for the benefit pro rata of his individual creditors, and all the property of the firm of Murdock & Dickson for the benefit pro rata of the creditors of that firm. This assignment purports on its face to be made by Murdock in the two capacities aforesaid, and also purports on its face to be an assignment for the benefit of creditors under the statutes of this State. Priest qualified as assignee and took possession of certain assets of Murdock & Dickson on the twenty-ninth day of November, 1873, and since then the matter of the assignment has been pending in the circuit court of St. Louis. Priest made no report, however as assignee, until November 23, 1880. He had heard proof of claims, and claims to the amount of over $ 117,000 were proved up against the estate. These claims are set out in "Exhibit B" attached to the agreed statement of facts. Among them were demands in large amounts in which James B. Eads, Barton Bates, Third National Bank and the National Bank of the State of Missouri were interested. It may be stated here that after the death of Dickson, Murdock continued to do business under the firm name at the old stand until about October 12, 1873. Assets of the alleged value of $ 40,000 came into the hands of Priest as assignee under the deed.

On December 15, 1888, Priest filed a petition in the circuit court of St. Louis for his final discharge in which he admitted the possession of $ 2,911.48. Exceptions were filed to this report by a creditor. It was referred and the referee reported that there were $ 9,782.58 in the hands of the assignee which ought to be distributed among creditors. The assignee excepted to this report, the St. Louis circuit court overruled these exceptions, an appeal was taken to this court which resulted in a finding that there were $ 9,632.58 in Priest's hands as assignee, with a mandate to the circuit court to enter judgment against him for that sum.

Charles K. Dickson by his last will devised to James B. Eads and Barton Bates a large quantity of real estate to hold in trust for his wife and children in accordance with the provisions of the will. Eads and Bates were likewise appointed as executors. After Priest qualified as assignee under the above mentioned deed he instituted suit in the circuit court of St Louis county to the June term, 1875, against Eads and Bates as trustees under said will, and against the devisees of Charles K. Dickson, to divest out of them the title to all the property held in trust by them under said last will of Charles K. Dickson which Murdock and Dickson had owned jointly as partners, and to vest it in Priest as the assignee of the partnership estate. Eads and Bates demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action, and that the deed of assignment made by Murdock to Priest was on its face absolutely void and of no force against the interest of Dickson in said firm of Murdock and Dickson, and on the further ground that it was defective and insufficient in its description. The court sustained this demurrer. A motion for rehearing was filed and a judgment entered of the following tenor:

"Monday, April 1, 1878.

"John G. Priest, Assignee of Murdock & Dickson, and John J. Murdock, v. (34,831) "James B. Eads and Barton Bates, Trustees under the last will and testament of Chas. K. Dickson, deceased.

"Now at this day come the defendants by their attorney, and this cause coming on for hearing, the plaintiffs, although called, failed to appear, wherefore on motion of defendants, it is ordered that said plaintiffs be nonsuited. It is therefore considered that the plaintiffs take nothing by their suit in this behalf and that the defendants go hereof without day and recover of the plaintiffs their costs and charges herein expended and have execution therefor."

In August, 1895, the probate court of St. Louis ordered the estate of Murdock & Dickson into the hands of William C. Richardson, public administrator, who entered his appearance and took charge. Thereupon it was suggested to the circuit court of St. Louis that it was exceeding its jurisdiction in taking cognizance of the assignment of the partnership estate which Murdock had made to Priest, and this proceeding was instituted to obtain a writ prohibiting the circuit judges from proceeding further with said assignment.

These are the facts in the case as agreed to by the parties.

Peremptory writ awarded.

John M. Dickson for relator.

(1) The validity of the appointment of an administrator by the probate court in Missouri can not be collaterally attacked. Macey v. Stark, 116 Mo. 481; Camden v Plain, 91 Mo. 118; Rowden v. Brown, 91 Mo. 429; Price v. R. E. Ass'n, 101 Mo. 107; Murphy v. De France, 105 Mo. 55; Rogers v. Johnson, 125 Mo. 213. (2) The public administrator has a right by virtue of his office to take into his control any estate, the assets or property of which are in danger of being "injured, wasted, purloined or lost." Wag. Stat. 1870, sec. 8, art. 9; R. S. 1889, secs. 299, 306; Headlee v. Cloud, 51 Mo. 301; Becraft v. Lewis, 41 Mo.App. 554; Leeper v. Taylor, 111 Mo. 312. (3) The probate court, having once rightfully acquired jurisdiction, could not be divested of it by any proceedings in any other court. Seibel v. Simeon, 62 Mo. 257. (4) After a surviving partner has qualified by giving bond in the probate court, he can not devolve his trust, by means of an assignment to a third person, and shift the place of accounting from the probate to the circuit court. 1 Wag. Stat. 1870, secs. 52 to 74, inclusive, pp. 78, 79, 80, 81 and 82; Shattuck v. Chandler, 40 Kan. 516; Tiemann v. Molliter, 71 Mo. 512. (5) The jurisdiction of the probate court over surviving partners who have given bond is exclusive. 1 Wag. Stat. 1870, sec. 52 to 74, pp. 78, 79, 80, 81 and 82; Ensworth v. Curd, 68 Mo. 285; 1 Woerner's Law of Adm., sec. 130; Caldwell v. Hawkins, 73 Mo. 453; Pearce v. Calhoun, 59 Mo. 272; Titterington v. Hooker, 58 Mo. 598; French v. Stratton, 79 Mo. 562; R. S. 1855, p. 1600; Rozelle v. Harmon, 103 Mo. 343. (6) The jurisdiction of the circuit court over the accounts of the surviving partner who has given bond in the probate court is appellate, and where appellate jurisdiction is expressly conferred upon a court, original jurisdiction is negatived. 1 Wag. Stat. 1870, sec. 1 to 11, pp. 119, 120; In re Bruening, 42 Mo. 276; Pearce v. Calhoun, 59 Mo. 273; Cones v. Ward, 47 Mo. 290; McCartney v. Garneau, 4 Mo.App. 567. (7) After the dissolution of a firm by death or otherwise, the survivor or remaining partner can not bind the firm assets by notes or other obligations entered into after the date of dissolution. Knaus v. Givens, 110 Mo. 64; Moore v. Lackman, 52 Mo. 324; 1 Lindley on Par., p. 283; Richardson v. Moies, 31 Mo. 431; 17 Am. and Eng. Ency. Law, 1443, notes 2 and 3; Ib. 1144, note 1; Ib. 1145, note 2. (8) Jurisdiction of the subject-matter is the power to hear and determine cases of the class to which the proceedings in question belongs. Leonhard v. Sparks, 117 Mo. 103. (9) Jurisdiction over subjectmatter can not be conferred by laches, lapse of time, consent of parties or waiver. Brown v. Woody, 64 Mo. 550; Dodson v. Scroggs, 47 Mo. 287. (10) The judgment of the circuit court holding the assignment invalid is a final judgment. Moran v. Plankington, 53 Mo. 243; O'Connor v....