Tittman v. Thornton

• Decision Date: 07 December 1891
• Citation: Tittman v. Thornton, 107 Mo. 500, 17 S.W. 979 (Mo. 1891)
• Parties: Tittman Administrator, v. Thornton et al., Appellants
• Court: Missouri Supreme Court

17 S.W. 979

107 Mo. 500

Tittman Administrator, v. Thornton et al., Appellants

Supreme Court of Missouri, First Division

December 7, 1891

October, 1891

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

A. J P. Garesche and Edmond A. B. Garesche for appellants.

(1) Suit should have been revived in name of John, not of Michael, Carroll's administrator. Cases cited by plaintiff are of no force because under the old common law, when not as now by the statute, the suit was not required to be in name of real party in interest. The administrator is not the unqualified owner of the assets of the estate. Lessing v. Vertrees, 32 Mo. 436; Est. of Ames & Co., 52 Mo. 293; Chandler v. Stevenson, 68 Mo. 450. Title of administrator is a possessory one, revoked by his death, resignation or removal. Hence, administrator de bonis non succeeds. Particularly now that the old common-law restrictions of his rights of bonis non administrandis no longer prevails. Now he may sue even for balance in hands of former administrator, or for a note given to the administrator for a debt due to the estate, neither of which he could have done at common law and have recovered. R. S. 1879, secs. 48, 50; Austin v. Towne, 10 Texas, 24; Smith's Adm'r v. Pearce, 2 Swan. (Tenn.) 128. Moreover, there is not a particle of proof that John Carroll ever resided in Iowa, where Michael took out letters. Will not presume that he was a citizen of Iowa, that the assets of his estate should be transferred thither to the detriment of Missouri creditors. Michael Carroll's administrator has no right. 2 Williams, Ex'rs (Perkin's Amer. Notes) top p. 970, bottom p. 900, note p and its citations; Fletcher v. Weir, 7 Dana, 345; Lea v. Hopkins, 7 Pa. 385; Russell v. Erwin, 41 Ala. 292; State v. Murray, 8 Ark. 199. Some of these cling to the restriction on power of administrator de bonis non. But this restriction is abolished. R. S. 1879, secs. 48, 50; Oglesby v. Gilmore, 5 Ga. 62; Austin v. Towne, 10 Tex. 24; Schouler's Ex'rs & Adm'r, sec. 409, bottom p. 480, n. 6-7; Bradfield v. Cardwell, 7 Lea (71 Tenn.) 252; Harbin v. Levi, 6 Ala. 403; Morse v. Clayton, 13 Smedes & Mar. 380; Gamble v. Hamilton, 7 Mo. 469; Scott v. Crews, 72 Mo. 263; Morehouse v. Ware, 78 Mo. 100. (2) There is a waiver only where there is a knowledge of the fact waived, and the burthen of proof of that knowledge devolves on claimant of the waiver. State v. Churchill, 48 Ark. 445; Dyas v. Hanson, 14 Mo.App. 375. Moreover the situation must have changed by the waiver and injury result. But here no injury results. The respondent gets all he desired, that without the proceedings, otherwise necessary, the suit be revived in the name of Michael Carroll's administrator. But there was no waiver of the objection that he was not the proper party, and this objection after consent is good at the trial. McDermott v. Doyle, 17 Mo. 362. How could it be waived when plaintiff believed the revivor must be in name of Michael Carroll's administrator, and even so contended at the trial. He asked no such waiver, and we granted just what he asked. (3) The court erred in exclusion of transcript of probate of Mrs. Thornton's will. Renick v. Chloe, 7 Mo. 197. (4) Also in exclusion of record of deed of Thornton to his wife. It was valid according to our law, hence presumed to be valid according to that of of Iowa. Gawtry v. Adams, 83 Mo. 339. (5) The court should have sustained motion for new trial. R. S. 1879, sec. 3704.

Edward Cunningham, Jr., for respondent.

This suit was properly brought in the name of Michael Carroll individually. When an executor or administrator has sued upon a debt or liability due his testator or intestate and has recovered judgment, he may, in his individual name and capacity, sue upon that judgment in a foreign state. Woerner's American Law of Admin., sec. 162; Freeman on Judgments [3 Ed.] sec. 217; Talmage v. Chappel, 16 Mass. 71; Barton v. Higgins, 41 Md. 546; Rucks v. Taylor, 49 Miss. 560; Lewis v. Adams, 70 Cal. 407; Nichols v. Smith, 7 Hun, 580; Biddle v. Wilkins, 1 Peters, 686; Mosman v. Bender, 80 Mo. 584; Hall v. Harrison, 21 Mo. 230; Thomas v. Relfe, 9 Mo. 377; Lacompte v. Sergeant, 7 Mo. 351; Wilkinson v. Culver, 25 F. 639; Newberry v. Robinson, 36 F. 841; Cherry v. Speight, 28 Tex. 520; Rittenhouse v. Ammerman, 64 Mo. 199. (2) There was no error of the trial court in reviving the suit in the name of Michael Carroll's administrator. This old rule is not changed by our code requiring suits to be brought in the name of the real party in interest. Abbott v. Miller, 10 Mo. 141; Harney v. Dutcher, 15 Mo. 89; Cook's Ex'r v. Holmes, 29 Mo. 61; Block v. Dorman, 51 Mo. 31; Brooks v. Mastin, 69 Mo. 58; Snyder v. Adams & Co., 77 Mo. 528. (3) The transcript of the judgment and proceedings of the circuit court of Dubuque county, Iowa, was properly admitted in evidence, notwithstanding defendants' objection then first made, that it had not been filed with the petition. It was not a paper which the statute required to be filed. Omahundro v. Clarkson, 13 Mo.App. 582; Young Men's Christian Ass'n v. Dubach, 82 Mo. 479; Bowling v. Hax, 55 Mo. 447; State to use v. Bartlett, 68 Mo. 581. If the paper had been such as the statute required plaintiff to file, the failure to file it must have been taken advantage of by motion to dismiss or to require plaintiff to file it, and not by objection to its introduction in evidence, or by motion for new trial. Railroad v. Knudson, 62 Mo. 569; State ex rel. v. Eldridge, 65 Mo. 584; Peake v. Bell, 65 Mo. 224. (4) The trial court was right in excluding the paper offered by defendants as evidence of a transfer or assignment from John Thornton to his wife Mary of his interest in the fund in controversy. There was no proof of its execution or record. (5) The trial court was right in excluding the paper offered by defendants as being the will of Mary Thornton. The paper purported to be a record of a court of Iowa. It was not authenticated as required by section 2321, Revised Statutes, 1879, in force at the time of the trial. It purported to be a record of the circuit court of Dubuque county. It was not certified by a judge of that court. There being no evidence of any interest of the alleged testator in the fund in dispute, her will was immaterial and irrelevant and, therefore, properly excluded. (6) The trial court was right in overruling defendant's motion for a new trial notwithstanding counsel's affidavit of surprise and mistake. There was no surprise or mistake within the meaning of section 3704, Revised Statutes, 1879. Fretwell v. Laffoon, 77 Mo. 26.

Black J. Sherwood, C. J., not sitting.

OPINION

Black, J.

This was a suit in equity brought by Michael Carroll against John Thornton and others to subject certain funds in the hands of Archbishop Kenrick, belonging to Thornton, to the payment of a judgment, which Carroll recovered against Thornton in the state of Iowa.

The following are the principal facts: Michael Carroll recovered a judgment against John Thornton in the circuit court of Dubuque county, Iowa, on the sixteenth of June, 1881, for the sum of $ 4,499. The pleadings in that case show that the cause was carried on in the name of Michael Carroll as if it had been a suit in his own right; but it appears from the body of the petition that the cause of action was based upon an indebtedness of Thornton as guardian of his ward, John Carroll. An amendment to the petition states that Michael Carroll was the administrator of the estate of John Carroll.

In May, 1886, Michael Carroll commenced this suit in this state against John Thornton and Peter Richard Kenrick. The petition, among other things sets up the Iowa judgment as one recovered by Michael Carroll in his own right. It is alleged that another John Thornton at the city of St. Louis, the uncle of the defendant Thornton, bequeathed to the defendant Kenrick the sum of $ 20,000, in trust to pay to defendant Thornton the interest thereon during his life, and prays that Kenrick, the trustee, be decreed to pay to the plaintiff the interest then accrued and thereafter to accrue on said fund until the judgment so recovered by the plaintiff in Iowa should be satisfied.

Thornton having been notified by publication appeared and by his answer disclaimed any interest in the fund, and on the suggestion of Kenrick one Duggan was made a defendant. Duggan by his answer claims to be the owner of the income accrued and to accrue on said fund by virtue of an assignment of the same by Thornton to May Thornton, and a bequest of the same by her to him. The plaintiff died while this cause was pending in the circuit court, and by consent of the defendants it was revived in the name of Tittman, public administrator, having in charge the estate of Michael Carroll. The circuit court found the issue for the plaintiff and entered a decree as prayed for and the defendants appealed.

1. The first complaint is that the circuit court erred in admitting in evidence the transcript of the Iowa judgment. The objections made to the transcript are, first, that it shows a judgment in favor of Michael Carroll as administrator of John Carroll, while the petition declares upon a judgment in favor of Michael Carroll in his own right; second, that this cause should have been revived in the name of the representative of John Carroll and not in the name of the administrator of Michael Carroll.

Looking to the judgment only, as it appears in the transcript, it is one in favor of Michael Carroll in his own right. Still the transcript as a whole shows that he recovered the same in the capacity of administrator of John Carroll, and we shall treat it as a judgment in favor of Michael Carroll as administrator of John Carroll.

It has...