Wernse v. McPike

• Decision Date: 31 October 1885
• Citation: 86 Mo. 565
• Parties: WERNSE et al., Plaintiffs in Error, v. MCPIKE.
• Court: Missouri Supreme Court

86 Mo. 565

WERNSE et al., Plaintiffs in Error,

v.MCPIKE.

Supreme Court of Missouri.

October Term, 1885.

Error to Ralls Circuit Court.--HON. THEODORE BRACE, Judge.

REVERSED.

Broadhead & Hauessler and W. H. Biggs for plaintiffs in error.

(1) The claimants having been misled by the action of the Ralls probate court in classing the judgment of the St. Louis circuit court, on personal appearance of administrator, their claim was not, under those circumstances, barred against the estate for want of presentment of original note within the two years. Fenn v. Dugdale, 31 Mo. 580; Tevis v. Tevis, 23 Mo. 256; Williamson v. Anthony, 47 Mo. 299; Pfeiffer v. Suess, 73 Mo. 248; Boone v. Shackelford, 66 Mo. 493; North v. Walker, 66 Mo. 453. (2) The claimants, by reason of the error of the court allowing and classing the judgment, instead of the original demand, and the administrator being at the time personally present, and making no objection until two years had elapsed, cannot now prevent the claimants from having the original note allowed and sharing in the distribution of the estate. (3) The administrator, having had notice of claimants' demand within the two years fixed by law, both by service of writ and petition in the St. Louis circuit court, as well as personally appearing in the probate court when demand was presented for allowance and classified, is estopped from now being permitted to plead limitations, and thus by a technicality defeat the plaintiff's demand from any participation in the estate.

Smith & Krauthoff, W. P. Harrison and J. P. Wood for defendants in error.

(1) The serving of process in the St. Louis circuit court, which had no jurisdiction, cannot be regarded as a valid notice to the administrator of the exhibition of the demand sued on in this case. Wernse v. McPike, 76 Mo. 249; Wernse v. Hall, 101 Ill. 423. Even if legal notice had been given to the administrator, or he had waived the same, still an allowance of the claim was barred at the time of its presentation for that purpose on May 2, 1879. (2) Plaintiffs could only exhibit their claim against said estate in the manner indicated by the statute, and this they have wholly failed to do. Pfeiffer v. Suess, 73 Mo. 245, 254; Burton v. Rutherford, 49 Mo. 258; Richardson v. Harrison, 36 Mo. 96; Bryan v. Mundy, 14 Mo. 458. (3) This is not a proceeding in equity, but it is an action at law to recover a judgment. Allowances are in effect judgments at law. Smith v. Sims, 77 Mo. 269. This is not an action for equitable relief on the ground of fraud, deceit or mistake, and the principles of equity jurisprudence applicable to such cases cannot be invoked here. (4) The classification of the void judgment was a nullity for want of jurisdiction in the probate court. The action of the parties and the probate court in respect to such classification stands as if it had never taken place. 9 Mo. 259; 55 Mo. 363; 4 Mo. App. 541; 58 Mo. 90. (5) The void character of the entry of March, 1874, is res adjudicata. 68 Mo. 546, 551; 75 Mo. 282, 283; 76 Mo. 38, 50, 51; 62 Mo. 338, 339. The case is precisely the same as when here before.

NORTON, J.

It appears from the record in this case that Abraham McPike was the endorser on a note for three thousand dollars, dated the twenty-third of December, 1872; that he died before the maturity of the note, and letters of administration were granted on his estate to defendant, H. C. McPike, on the twenty-eighth day of January, 1873, by the probate court of Ralls county; that payment of said note was, at its maturity, demanded, which being refused, it was duly protested, of which the defendant as administrator was duly notified; that thereafter suit was instituted in the circuit court of St. Louis county on said note against said defendant as said administrator, and all other parties thereto, of which said administrator had personal notice, by service upon him of a copy of the petition and note; that final judgment was afterwards rendered in said cause against all the parties; that thereafter, at the April term, 1874, of the probate court of Ralls county a copy of said judgment was presented for classification and was, without objection of defendant, placed in the fifth class of demands; that this was recognized and treated by defendant, as well as by plaintiff, as a proper exhibition and classification of said claim, till the twelfth day of December, 1877, when said probate court set aside and annulled the order classifying said demand, which action of said probate court was approved by the circuit court of Ralls county, in 1879, and which action of the circuit court was affirmed by this court in the case of Wernse v. McPike, 76 Mo. 249, at its October term, 1882, on the ground that the circuit court of St. Louis county had no jurisdiction of the cause of action, as against the administrator, in which the judgment was rendered.

It also appears that on the nineteenth day of March, 1879, plaintiffs gave defendant a written notice containing a copy of the said note, notifying him that on the second Monday of May, 1879, they would present the said note for allowance against the estate. The probate court held that the said claim was barred by limitation, and refused to allow it; which judgment, on appeal to the Ralls county circuit court, was affirmed, and it is from this judgment that plaintiffs prosecute their writ of error, and the sole question presented for determination is whether, under the facts and circumstances of this case, the administrator can interpose the statutory bar of limitation, and whether, in contemplation of law, the demand of plaintiffs was exhibited to the administrator within two years after letters were granted, and presented to the probate court for allowance within three years after grant of such letters.

The law in force at the time the proceedings were had in this case is to be found in sections two, five, six and fifteen, Wagner's Statutes, volume 1, pages 102, 104. Section two provides that all demands not exhibited within two years shall be barred. Section five provides that any person may exhibit his demand by serving the administrator with a written notice, stating the nature and amount of his claim, with a copy of the instrument of writing or account on which the claim is founded, and that such claim shall be deemed to be legally exhibited from the time of serving such notice. Section six provides that no person shall claim the benefit of section five unless he shall present his demand for allowance within three years after the granting of the first letters of the estate. Section fifteen provides the kind of notice to be given when a demand is to be presented for allowance. The liability of the estate for the payment of the demand in question is predicated on the fact that McPike, deceased, was the endorser on a note, of the protest of which for non-payment the defendant, as his administrator, was duly notified.

The facts disclosed by the record show that soon after the protest and within the first year of the administration, suit was instituted upon the note in the circuit court of St. Louis county, of which the administrator was notified, which terminated in a judgment against him; that this judgment was thereafter, in 1874, and within two years after the grant of letters, presented to the probate court of Ralls county for classification and put in the fifth class of demands. This judgment and classification was treated by the administrator and the plaintiffs as a valid proceeding, and was in good faith relied upon till in 1877, when plaintiffs instituted a proceeding in said probate court for its payment, the administrator appeared and resisted the payment on the ground that the judgment rendered by the circuit court of St. Louis county was void, because said court had no jurisdiction of it, and that the classification of such judgment was, therefore, a nullity. The point thus made was sustained by the...