Vosler v. Brock

• Decision Date: 31 October 1884
• Citation: 84 Mo. 574
• Parties: VOSLER, Surviving Partner, v. BROCK, Executor.
• Court: Missouri Supreme Court

84 Mo. 574

VOSLER, Surviving Partner,

v.BROCK, Executor.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Cass Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

Wooldridge & Daniel for appellants.

(1) The constable had no power out of the county in which he was elected and resided to serve notice on the executors. And, further, to render such service good, when made by an officer qualified to make it, each of the executors should have been served with a copy. There was no affidavit of the service. R. S., sections 199, 654, and 2843. (2) Even if the executors had been legally notified of the presentation of the demand, they were notified to appear at Pleasant Hill, and not at Harrisonville, where said claim was allowed. Laws of 1867, p. 87, sec. 11. (3) The court erred in receiving in evidence the instrument purporting to be a note executed by the testator without proof of its execution. R. S., sec. 3654. Also in admitting evidence of witnesses, Terrell and Wheeler, to contradict and impeach defendant executor on a collateral and irrelevant matter. McKern v. Calvert, 59 Mo. 243; 1 Greenl. Ev., sec. 455. The promises of the executor to pay were not competent to bind the estate. Leaper et al. v. McGuire, 57 Mo. 360. (4) The court erred in ordering that one only of the executors proceed to sell, the letters of the one who had become non-resident never having been revoked. R. S., sec. 10; State ex rel. v. Rucker, 59 Mo. 17; State ex rel. v. Green, 65 Mo. 328.

W. J. Terrell for respondent.

(1) The common pleas court of Cass county, in which said demand was allowed, was a court of record, and had exclusive original jurisdiction in all matters pertaining to demands against estates of decedents, and its judgments are conclusive in all collateral proceedings, until set aside. See session acts 1867, p. 86, sec. 4; Johnson v. Beazley, 65 Mo. 250, 254; Sims v. Gray, 66 Mo. 613, 616; Julian v. Ward, 69 Mo. 153; Henry v. McKerlie, 78 Mo. 416. (2) Service by constable is presumed to have been within his county unless positively and clearly proven to have been elsewhere, and there is only hearsay to the contrary. The gist of the matter is the receiving of a copy of demand with notice of presentation. Sec. 5, G. S., p. 202. (3) The note and allowance indersed thereon was legal evidence, the execution of the note having been established by the judgment of the common pleas court. It was also a paper identified by endorsement of the clerk of said common pleas court in said cause, and competent, therefore, as evidence. Hickman v. Griffin, 6 Mo. 37; North v. Walker,66 Mo. 453. (4) The case was tried by the court and the judgment should not be reversed, there being evidence to support the finding. Blumenthal v. Torrent, 40 Mo. 159; Ewing v. Gass, 41 Mo. 492; Snyder v. Burnham, 77 Mo. 52. (5) The common pleas court had power to transfer the cause. The action of the probate court, in finding the fact that appellant was duly notified of petition of sale of real estate, and that said former coexecutor, S. E. Brock, was a non-resident of the state, and making order of sale against appellant, was in effect a revocation of the letters of said S. E. Brock. It was in the court having jurisdiction. State ex rel v. Rucker et al., 59 Mo. 24. (6) Again, the question was not raised below. No motion in arrest of judgment was made, and if the judgment of the circuit court be defective it is not prejudicial to the rights of appellant, and this court should render the proper judgment here. No statute of limitation bars relief. Ranney v. Thomas et al., 45 Mo. 111; North v. Walker, 66 Mo. 460; North v. Walker, 2 Mo. App. 174; Bray v. Seligman, 75 Mo. 40.

DEARMOND, C.

Davis and Vosler, having obtained the allowance of a demand against the estate of John Brock, deceased, then, in 1871, in the hands of John C. Brock and S. E. Brock, executors of said deceased, in 1877 petitioned the probate court of Cass county, having charge of said estate, for an order for the sale of certain real estate of the deceased to pay their allowed demand. After many continuances and delays the order of sale was made, and defendant, John C. Brock, as the only acting executor, said S. E. Brock having long before removed from the state and acquired a residence in another state, appealed to the circuit court, and, the action of the probate court being affirmed, he appealed to this court. The executor resisted the order on the ground that the allowance to Davis & Co. was made without notice to the executors of presentation of the demand, and because the demand was presented to the common pleas court at Pleasant Hill, and the cause thence transferred to Harrisonville, without the knowledge or consent of the executors, and the allowance made at Harrisonville without jurisdiction. Also, that the demand was not allowed or exhibited within the statutory period within which demands against the estates of deceased persons must be exhibited. Evidence was introduced by each party on the question of notice. Appellant objected to much of that introduced by the plaintiff, and urges his objection here. Davis died since the cause reached this court, and the action was revived in the name of Gilbert Vosler, as surviving partner, plaintiff.

I. There is nothing in the record to show when, if at all, notice was given by the executors of their taking charge and beginning the settlement of the estate of their testator; so the question of limitations does not arise. Even if it appeared prima facie that the claim was not exhibited in time, its allowance by ...