Wernecke v. Kenyon's Adm'r

• Decision Date: 31 October 1877
• Parties: WERNECKE et al., Appellants v. KENYON'S Administrator.
• Court: Missouri Supreme Court

66 Mo. 275

WERNECKE et al., Appellants

v.KENYON'S Administrator.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Madison Circuit Court.--HON. LOUIS F. DINNING, Judge.

The object of this proceeding was to procure the enforcement and satisfaction of a decree of the circuit court of Madison county, which is set out in full in the opinion in this case.

Plaintiffs presented this decree to the probate court and had it allowed for the full amount of $789.59, against the estate of H. F. Kenyon, deceased. The allowance in favor of Madison county against said estate, referred to in the opinion, was for $250. The plaintiffs, as sureties on the bond of the administrator of the estate, were compelled, after prolonged litigation, to pay that allowance, together with the costs of the litigation. The decree for $789.59 embraced these costs and ten per cent. interest on the whole amount paid by plaintiffs. The other facts appear in the opinion of the court.

B. B. Cahoon and J. B. Douchouquette for appellants.

1. The judgment of the Madison circuit court cannot be attacked collaterally. Kenyon's administrator was duly served and brought within the jurisdiction of the court. If the court had jurisdiction of the subject-matter of the suit, the judgment rendered by it cannot be impeached collaterally, and it is valid, no matter what errors were committed in rendering it, until reversed or annulled by a direct proceeding instituted for the purpose. Martin v. McLean, 49 Mo. 361; Taylor v. Hunt, 34 Mo. 205; Landes v. Perkins, 12 Mo. 254; Hendrickson v. St. L. & I. M. R. R. Co., 34 Mo. 188; Warren v. Lusk, 16 Mo. 111; Cooper v. Reynolds, 10 Wallace 315; Stovall v. Banks, 10 Wal. 583; McGoon v. Scales, 9 Wall. 23; Florentine v. Barton, 2 Wall. 210; Harvey v. Tyler, 2 Wall. 328.

2. The failure to answer the plaintiffs' petition admitted their right to recover. Robinson v. Mo. R'y Con. Co., 53 Mo. 436; Stewart v. Caldwell, 54 Mo. 538. And having once appeared to the action, the judgment cannot be decreed void collaterally, as is sought here to be done. Bracket v. Bracket, 53 Mo. 265; Marsh v. Bast, 41 Mo. 493; Collins v. Bannister, 48 Mo. 435; Finney v. State, 9 Mo. 624.

3. But as to the power of the circuit court to subrogate the plaintiffs. The plaintiffs were Wood's securities as administrator of Kenyon. He was Kenyon's personal representative, and as such, he was bound to apply the property left by Kenyon to the payment of his debts. If Wood, as administrator, failed to do so, and the debts of Kenyon were paid by the plaintiffs, the property of Kenyon, so bound for the payment of his debts, remained after the cancellation of the fraudulent deed, as it did, a part of his estate, then by virtue of correct, equitable principles, the plaintiffs became, in a sense, securities for Kenyon.

4. Where the principal fails to pay a debt, and the security is compelled to do, the security is immediately subrogated to all the rights of the creditor, and although he does pay, not as an extinguishment of the debt, but the debt, such payment results, by the process of equitable assignment, in the nature of a purchase by the surety of the debt from the creditor, and the surety thereupon is entitled to have vested all the rights and benefits the original creditor had, or might have had. Cole Co. v. Angney, 12 Mo. 132; Crump v. McMurtry, 8 Mo. 408; Furnold v. Bank of Missouri, 44 Mo. 336; Berthold v. Berthold, 46 Mo. 561; Seely v. Beck, 42 Mo. 143; Hayes v. Ward, 4 Johns. Ch. 123; Lidderdale v. Robinson, 12 Wheat. 594; Lathrop & Dale's Appeal, 1 Barr 512; Ex parte Crisp 1 Atk. 133; Wright v. Morley, 11 Vesey 22; Parsons v. Briddock, 2 Vern. Ch. 608; McCune v. Belt, 38 Mo. 281; Smith v. Schneider, 23 Mo. 447; Haven v. Foley, 18 Mo. 138; Cheesebrough v. Millard, 1 Johns. Ch. 409; 1 Sto. Eq. Jur., §§ 327, 469, 477, 483, 493, 499 and 499 a; 1 W. & T. Lead. Ca. 60, and note; Ibid 557, 559; 1 W. & T. Lead. Ca. 105, and Am. note; Enders v. Brune, 4 Rand. 438; Douglass v. Fagg, 8 Leigh. 588; Cottrell's Appeal, 11 Harris 294; Mount v. Valle, 19 Mo. 622; Powell v. White, 11 Leigh 309; Sotheren v. Reed, 4 Harr. & Johns. 307; Merryman v. State, 5 Harr. & Johns. 423; Hollingsworth v. Floyd, 2 Harr. & Gill 88; Watkins v. Worthington, 2 Bland 509, 529; Wheatley's heirs v. Calhoun, 12 Leigh 265; 9 Watts 451; Himes v. Keller, 3 Watts & Serg. 401-4; Perkins v. Kershaw, 1 Hill's Ch. 344, 351; Norwood v. Norwood, 2 Harr. & Johns. 238.

5. But it is contended that even though the plaintiffs could be subrogated, the court acted erroneously in rendering judgment for the amount it did against the estate, because the claims had previously been probated in favor of the county against the estate.

1st. To this we reply that such action does not render the judgment absolutely void, and the position is not available in this collateral attack upon the judgment.

2nd. That in so rendering the judgment against Kenyon's estate the action of the circuit court has already been approved, and declared legal, in Wernecke et al. v. Wood, Adm., 58 Mo. 358.

3rd. And that the ascertaining of the amount due and paid by the plaintiffs, was not an improper action on the part of the circuit court, for the judgment had to be classed against the estate and in the name of the plaintiffs. The probate court had no power to order this equitable assignment of the old allowances in the name of the plaintiffs. Moreover, resort in the action was had to a court of equity, and having acquired jurisdiction of a part of the case, it did right to complete the entire judgment, so that when it was presented for classification, in the name of the plaintiffs, it would be complete in itself. ( McDaniels v. Lee, 37 Mo. 206; Rozier v. Griffith, 31 Mo. 174; Keeton v. Spradling, 13 Mo. 321; Holland v. Anderson, 38 Mo. 58; Hosford v. Merwin, 5 Barb. 62; Wiswall v. McGown, 2 Barb. 270; Corby v. Bean, 44 Mo. 379.)

6. This is not one of those cases of which the Madison probate court, under the act creating it, has exclusive original jurisdiction. It it not a suit for or “upon any demand,” as is contemplated by that act. It is a proceeding in equity.

1st. To cancel a fraudulent deed.

2nd. To obtain judgment against Kenyon's estate for the amount paid; and,

3rd. To be subrogated to the rights of Madison county on a demand before established and allowed in that court. The probate court, under the special statute, had no power as a court of equity, nor could it cancel a fraudulent deed, or subrogate any person, and especially the plaintiffs.

J. W. Emerson for respondent.

1. If the judgment of the Madison circuit court had been a judgment against the estate of Kenyon--as it was not--it would have been a nullity, because,

1st. That court did not have jurisdiction at all to render any judgment for money against the estate of deceased persons; and

2nd. Because the claim of Madison county--to which plaintiffs had been subrogated--had long before been duly adjudicated, that is to say, the judgment offered, shows on its face that the probate court had years before rendered judgment for this claim against the estate; and it further shows that this same probate court still had jurisdiction over the case.

2. The circuit court, by decree, had subrogated plaintiffs to the rights of Madison county as creditor of this estate. In other words, the court, as a court of equity, by its decree, virtually assigned the claim of Madison county to the plaintiffs. They then stood just where Madison county stood when it held the claim against the estate duly allowed by the probate court. They had no more or different rights than Madison county did have. They took just what Madison county had. No more, no less. They got only the rights of Madison county. They could not enforce their claim any differently than Madison county could have enforced it. This is certainly very plain. How could Madison county enforce its judgment or allowance against the estate of Kenyon? Could it have brought a new suit in the circuit court, on the judgment of the probate court of the same county still duly administering this estate? The very suggestion shows its utter absurdity. No. They had valid judgments in the probate court, a court capable of enforcing payment--the only court having jurisdiction at all. These claims or judgments of Madison county had been duly assigned to these plaintiffs by force of the decree of subrogation, and they should have enforced payment through the probate court and the administrator, and not attempt to get new judgment for three or four times the amount paid on the old judgments or allowances.

3. The defendant is not attempting to attack the judgment collaterally. Directing that the judgment against Wood and his wife be paid out of the real estate of the Kenyon estate, and rendering a judgment against the estate expressly, and for a specific sum, are two very different things. The circuit court could make no such order, as the law settled that. But it is enough that it did not in fact render any judgment against the estate for money; that judgment was only against Wood and his wife, and so was properly excluded by the court below.

4. The court below properly gave judgment for the defendant. Any other result would be an outrage on the heirs. Plaintiffs have the claim of Madison county against the estate duly assigned to them by the decree; that claim has been duly adjudicated and allowed by the probate court. They need no further judgment to make the claim effectual. They can enforce the original allowances of Madison county against the estate, and no more. The administrator should have paid these off without costs or litigation. When he failed to do so his securities--these plaintiffs--should have done so. Because they were stubborn and made hundreds of dollars of costs by years of litigation before doing so, does not make the estate liable for the costs these plaintiffs, the securities of Wood, made in fighting the claim. They were...