Trapp v. Mersman
| Decision Date | 02 June 1914 |
| Parties | FREDERICK TRAPP, Respondent, v. EMMA MERSMAN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
T Percy Carr for appellant.
(1) A foreign domiciliary executor or administrator cannot maintain an action in Missouri upon an asset having its situs in this State. McCarty v. Hall, 13 Mo. 480; Stearns v Burnham, 5 Greenleaf 261; Gregory v. McCormick, 120 Mo. 662-3; Estate of Ames, 52 Mo. 290; Morton v. Hatch, 54 Mo. 411; Naylor v. Moffatt, 29 Mo. 128; Becraft v. Lewis, 41 Mo.App. 546; De LaVergne v. Richardson, 198 Mo. 189; Richardson v. Busch, 198 Mo. 174; Crohn v. Bank, 137 Mo.App. 712; Armour v. Bank, 113 Mo. 121; Caffery v. Coal Co., 95 Mo.App. 174; Turner v. Campbell, 124 Mo.App. 133; Kelley's Probate Guide (4 Ed., 1913), sec. 241. And such foreign executor will not be permitted to recover indirectly when he could not maintain his action here directly in his capacity as such executor. McCarty v. Hall, 13 Mo. 480; Stearns v. Burnham, 5 Greenleaf 261; 17 Am. Dec. 228. (2) The note in suit is without legal consideration, because: It was given solely in consideration of the pre-existing indebtedness of Ella Hoblit to the estate of Koehnle. Said Ella Hoblit was a resident of Missouri, and the situs of said debt or asset was accordingly in Missouri, where the debtor resided, and not in Illinois, the State of the decedent's domicile. Such being the case, the Illinois executors had no legal title to or control over said asset and could not legally collect same or discharge the debtor; nor would payment of said original debt to said Illinois executors afford any protection or defense to a subsequent action brought by an ancillary administration in Missouri. McCarty v. Hall, 13 Mo. 480; Crohn v. Clay County State Bank, 137 Mo.App. 712; Bartlett v. Hyde, 3 Mo. 490; Woerner's Law of Decedents' Estates (1913), sec. 159. (3) The defendant as surety on the note in suit was discharged by the acts of the executors, and particularly by their action in closing the estate and obtaining their final discharge, thereby leaving no one legally authorized to sue upon the note and creating a delay of five years by their own act and without defendant's consent. United States v. Simpson, 24 Am. Dec. 331; Johnson v. Bank, 43 Am. Dec. 480; Dickerson v. Ripley County, 63 Am. Dec. 378; Headlee v. Jones, 43 Mo. 235; Carroll County v. Roberts, 68 Mo. 234; Rucker v. Robinson, 38 Mo. 154; Hosea v. Rowley, 57 Mo. 357; Hartman v. Rodman, 21 Mo.App. 124; Elliott v. Qualls, 149 Mo.App. 482. (4) The court erred in permitting the amendment, substituting a different plaintiff from the original plaintiff, and substituting a different cause of action from the one originally sued on.
Edw. D'Arcy and Robert M. Wilson for respondent.
(1) The amendment permitting plaintiff to strike out of the caption the words, "as surviving executor," etc., did not change the cause of action and was properly allowed. Sec. 7587, R. S. 1909; Shaffner v. Leahy, 21 Mo.App. 110; Commission Co. v. Milling Co., 136 Mo.App. 365; Tyrrel v. Milliken, 135 Mo.App. 293; Hackett v. Van Frank, 119 Mo.App. 648; Lilly v. Tobein, 103 Mo. 477; Harkness v. Julian, 53 Mo. 238; House v. Duncan, 50 Mo. 453. If defendant objects to the allowance of an amendment to a petition on the ground that it changes the cause of action, he must move to strike out and in the event the motion is ruled against him stand on his motion and appeal. If he joines issue and goes to trial thereon, he waives his right to object. City Light, etc. Co. v. St. Mary's Mch. Co., 156 S.W. 83; Jones v. Traction Co., 137 Mo.App. 408; Grymes v. Mill & Lbr. Co., 111 Mo.App. 358. (2) An executor or administrator may sue upon a note given to him as executor or administrator, for a debt due the estate, in his own name, treating his representative capacity as a mere descriptio personae. Miller v. Hoover, 121 Mo.App. 572; Tittman v. Thornton, 107 Mo. 506; Smith, Admr. v. Monks, 55 Mo. 106; Nicolay v. Fritschle, 40 Mo. 67; 3 Redfield on Wills, p. 205; Vandeventer v. Bank, 162 Mo.App. 34. The payee and holder of a note may institute suit thereon in his own name and it is no defense that he holds the note as trustee for a third party. Nicolay v. Fritschle, 40 Mo. 67; Lachance v. Loblein, 15 Mo.App. 462; 2 Daniels on Neg. Instrs. (5 Ed.), secs. 1191, 1192. (3) The surrender of the former notes was a sufficient consideration for the note in suit. Dorris v. Cronan, 149 Mo.App. 177; Zuendt v. Doerner, 101 Mo.App. 528; Fitzgerald v. Fleming, 58 Mo.App. 185; Life Ins. Co. v. Landis, 50 Mo.App. 116; Hudson v. Busby, 48 Mo. 35. (4) A party may give jurisdiction to a justice of the peace by a voluntary reduction of a part of his demand. It matters not in what way the reduction of the demand is made so the amount claimed is within the justice's jurisdiction. Buckner v. Armour, 1 Mo. 379; Best v. Best, 16 Mo. 530; Denny v. Eckelkamp, 30 Mo. 140; 24 Cyc. p. 474. (5) To discharge a surety, the creditor must do some act by which he deprives himself of the right to proceed at law for the collection of the obligation. Respondent did not deprive himself of this right. Elliott v. Qualls, 149 Mo.App. 482; Bank v. Taylor, 69 Mo.App. 99; Life Ins. Co. v. Landis, 50 Mo.App. 116; Buckner v. Robinson, 38 Mo. 154. (6) Parties are restricted on appeal to the theory on which the cause was tried in the court below. Pleadwell v. Glass Co., 160 Mo.App. 585; Mitchell v. United Railways Co., 125 Mo.App. 1; Railroad v. Iron Works, 117 Mo.App. 153; Heman v. Lasker, 108 Mo.App. 392. A point not presented and passed on by the trial court will not be considered on appeal. Sec. 2081, R. S. 1909; Dunlap v. Kelly, 130 Mo.App. 525; Lucas v. Cella, 115 Mo.App. 395; Kansas City to Use v. McGovern, 78 Mo.App. 513; Mantz v. Maguire, 52 Mo.App. 136.
This is an action upon a promissory note, which was originally for the sum of $ 725, dated February 9, 1904. It is payable to certain executors in the State of Illinois, and was executed by appellant and one Ella C. Hoblit, to take up notes of the latter due the estate then in charge of such executors, the appellant executing the same as an accommodation maker. At the time of the commencement of the suit, various credits appeared indorsed upon the note, leaving a balance due thereon at said date, exclusive of interest, in excess of $ 500.
The cause was instituted before a justice of the peace, by filing the note. Counsel for plaintiff left with the clerk a memorandum containing the style of the cause, the names and addresses of plaintiff's counsel, defendant's address, and the following notation, viz: "Amount of plaintiff's demand $ 500. Plaintiff had judgment before the justice for $ 500, and the defendant appealed to the circuit court, where plaintiff again recovered judgment for a like amount, from which the defendant here prosecutes this appeal.
Learned counsel for appellant contended below, as he does here, that plaintiff's demand was in excess of the jurisdiction of the justice of the peace; and since the latter had no jurisdiction, the circuit court could acquire none on appeal.
It is well settled that the jurisdiction of a justice of the peace must affirmatively appear on the face of the proceedings. [See Ruckert v. Richter, 127 Mo.App. 664, 106 S.W. 1081; Severn v. Railroad, 149 Mo.App. 631, 129 S.W. 477; Buchholz v. Insurance Co., 177 Mo.App. 683, 158 S.W. 451.] And if a justice has no jurisdiction the circuit court can acquire none on appeal; for the jurisdiction of the latter is purely derivative and dependent upon the jurisdiction of the justice. [See Brownfield v. Thomas, 96 Mo.App. 340, 70 S.W. 378; Johnson v. Stephens, 107 Mo.App. 629, 82 S.W. 192; Buchholz v. Insurance Co., supra.]
The statute confers jurisdiction upon justices of the peace in the city of St. Louis only where the amount of the demand, exclusive of interest and costs, does not exceed $ 500. [See Sec. 7615, R. S. 1909.]
The note filed with the justice of the peace must be regarded as the basis of plaintiff's demand and the foundation of his suit. Where the action is upon an instrument, as here, the statute requires the instrument to be filed. [Sec. 7412, R S. 1909.] And it is held that a statement of the cause of action filed therewith, being unauthorized and not contemplated by the statute, should be ignored. [See Rhea v. Mfg. Co., 81 Mo.App. 400; Conn Co. v. Orr et al., 150 Mo.App. 705, 131 S.W. 765.] Under the statute it appears that the instrument filed, or the account, where the action is upon an account, must be looked to, in order to determine the question of jurisdiction over the subject-matter. The statute (Sec. 7412 supra) provides that "before any process shall be issued in any suit, the plaintiff shall file with the justice the instrument sued on, or a statement of the account, or of the facts constituting the cause of action upon which the suit is founded." It is true that under this section it has been held that the filing of the instrument, in the first instance, is not essential to confer jurisdiction on the justice, "but that the omission is cured by filing it after the suit has been commenced, or, if the case is appealed, by filing it in the circuit court." [See Keyes & Watkins Livery Co. v. Freber, 102 Mo.App. 315, 76 S.W. 698; Sanders v. Selleck, 165 Mo.App. 392, 147 S.W. 134.] But this is quite a different question we think from that now before us. In the instant case the question of the jurisdiction of the justice of the peace does not arise from a failure to file...
To continue reading
Request your trial