Viehmann v. Viehmann

• Decision Date: 23 February 1923
• Docket Number: No. 23144.,23144.
• Citation: 250 S.W. 565,298 Mo. 356
• Parties: VIEHMANN et al. v. VIEHMANN.
• Court: Missouri Supreme Court

250 S.W. 565

298 Mo. 356

VIEHMANN et al. v. VIEHMANN.

No. 23144.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Rehearing Denied April 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Statutory action for partition by Louise Viehmann and others against Jacob Viehmann, a minor, by his guardian and curator, Josephine Tamper. From decree for plaintiffs, defendant appeals. Affirmed.

John Cashman, of St. Louis, for appellant.

W. F. Hiedeman, of St. Louis, for respondents.

Statement.

DAVIS, C.

This is a statutory action in partition, filed in the circuit court of the city of St. Louis on the 25th day of June, 1920, praying partition and sale of one certain parcel of improved city real estate, the petition alleging, in substance, that said real estate devolved on plaintiffs and the minor defendant from one Jacob Viehmann, father and grandfather, respectively, of the parties, which estate was then and had been in the course of administration in the probate court since December 27th previous. Defendant's second amended answer, after admitting the granting of letters of administration to Louise Viehmann, and the heirship and interest of the parties, is a pleading ha the nature of an equitable cross-bill, stating, in effect, that the testator died intestate, seized of two pieces of property, other than the piece sought to be partitioned by plaintiffs, which were sold by the plaintiff herein, who was the administratrix of said estate, as such, to the other plaintiff, Augusta Schroeder, to satisfy a judgment obtained in the probate court by plaintiff Louise Viehmann for services against the estate of Jacob Viehmann, upon service on the administrator pendente lite, and which said judgment defendant alleges was duly allowed on the 4th day of March, 1920, and placed in the fifth class of demands against said estate. It further alleges and sets up fraudulent acts on the part of plaintiffs, by means of a conspiracy to cheat and defraud defendant, and prays that the judgment claim of plaintiff Louise Viehmann against decedent's estate, and the order and sale made to coplaintiff herein, Augusta Schroeder, be set aside and held for naught, and that the title to said lots be divested out of the said Augusta Schroeder and restored to said estate and said lots he partitioned. Plaintiffs' reply to said cross-bill was: First, a general denial; and, second, in substance, that the administratrix procured and published an order froth the probate court directing her to sell the real estate to pay debts.

The trial court excluded evidence sought by defendant to be introduced under the cross-bill, dismissed his cross-bill, and decreed partition and sale of the one piece of property set out in plaintiff's petition.

The evidence and such other matters as may be deemed important will be referred to in the opinion.

Opinion.

The questions presented for determination are: First, may defendant collaterally attack and put in issue the verity of a judgment entered in the probate court? and, second, is defendant's cross-bill the proper pleading to act as a direct attack on the probate court judgment?

1. Besides alleging in his cross-bill that the claim of plaintiff Louise Viehmann was duly allowed, defendant's evidence tends to show the appointment of an administrator pendente lite by the probate court, the presentation of the claim to him verified by oath, waiver of notice and entry of appearance, the call on claimant to testify, consent to immediate hearing, the allowance of the claim and entry of judgment, and the payment of the judgment in the sum of $1,919.93. The judgment of the probate court as thus set forth tends to show regularity, is a voidable judgment only, and may not be set aside except for fraud in a direct proceeding brought for that purpose. The law is well established in this state that orders and judgments of the probate court, within their statutory powers, and concerning matters intrusted to them by law, are entitled to the same favorable presumptions arising from either affirmative statements, or the silence of their records, as are accorded in similar cases to the circuit courts. The judgment and proceedings of a court entitled to these presumptions will be upheld against collateral attack, unless it affirmatively appears in some portion of the entire record that the steps necessary to acquire jurisdiction were not taken. Oldaker v. Spiking (Mo. Sup.) 210 S. W. 59-62, and cases cited; Wright v. Hetherlin, 277 Mo. loc. cit. 112, 209 S. W. 871; Harter v. Petty, 266 Mo. 296, 181 S. W. 39; State ex rel. v. Ellison, 285 Mo. 301, 226 S. W. 559, 12 A. L. R. 1157; Lieber v. Lieber, 239 Mo. 1, 143 S. W. 458; Abernathy v. Mo. Pac. Ry. Co., 287 Mo. 30, 228 S. W. 486; State ex rel. v. Bagby, 288 Mo. 482, 232 S. W. 474.

2. Having ruled that the verity of a judgment of the probate court, fair on its face, may not be attacked collaterally, it becomes necessary to determine whether defendant's cross-bill to set aside the judgment for fraud is a pleading that may act as a direct attack.

Plaintiff's suit is a statutory action to partition one...