Wernse v. McPike

• Decision Date: 19 May 1890
• Citation: 13 S.W. 809,100 Mo. 476
• Parties: WERNSE et al. v. McPIKE.
• Court: Missouri Supreme Court

13 S.W. 809

100 Mo. 476

WERNSE et al. v. McPIKE.

Supreme Court of Missouri.

May 19, 1890.

EXECUTORS AND ADMINISTRATORS — ALLOWANCE OF CLAIMS — JUDGMENTS — LIMITATION.

1. Gen. St. Mo. 1865, p. 502, § 5, provides that any person may exhibit his demand against an estate, by serving on the executor or administrator written notice of his claim, with a copy of the instrument or account on which the claim is founded; and such claim shall be considered legally exhibited from the time of serving such notice. Page 502, § 8, provides that any person having a demand against an estate may establish it by the judgment of some court of record, in the ordinary course of proceedings, and exhibit a copy of such judgment to the court having

probate jurisdiction. Page 504, §§ 26, 27, provide that the clerk of the probate court shall keep an abstract of all judgments of other courts filed, and of all demands established, in said court against such estate, which shall show their amount, date, class, and to whom payable; and that if any "judgment" of a court of record "be filed" in said court, and when "demands" are "allowed" against an estate, such court shall determine its class, and the clerk shall make an entry thereof in his abstract, and, when thus classed, the executor or administrator may satisfy such demand according to such classification. Held, that where a judgment was rendered against an administrator on an intestate's note, in a circuit court, the filing of the judgment in the probate court for classification was sufficient, without a presentation for allowance, as in case of simple "demands." Overruling Bryan v. Mundy, 14 Mo. 458; Ewing v. Taylor, 70 Mo. 394; and Wernse v. McPike, 76 Mo. 249.

2. Where a valid judgment has been rendered on a note, the note is no longer a demand to be presented for allowance against a decedent's estate.

3. Service of the process of a court not having jurisdiction of an action against an administrator is not an exhibition of a demand against the estate which can be amended after the time limited for exhibiting the demand.

4. The judgment of a court of another state that plaintiff's action on a note was barred by the laws of this state is a bar to an action on the note in this state.

Appeal from circuit court, Ralls county; THEO. BRACE, Judge.

The Traders' Bank of St. Louis held a note for $3,200 made by Leiper, Bowling & Co., and indorsed by Abraham McPike. Abraham McPike died, and Henry C. McPike qualified as administrator of his estate, in the probate court of Ralls county, January 28, 1873. The note, being unpaid, was duly protested, and the bank brought suit on it in the circuit court of St. Louis county against Leiper, Bowling & Co. and Henry C. McPike, administrator. The former resided, and the latter was found, and all were personally served, in St. Louis county on the 5th of July, 1873. In due time judgment by default was entered against all the defendants, October 16, 1873. Thereupon a transcript of the record was filed in the probate court of Ralls county, and the administrator being present, as the record recites, the judgment was duly exhibited and placed in the fifth class on the 15th of April, 1874, from which classification no appeal was taken. The administrator subsequently filed a petition for an order of sale of the realty to pay debts, and in that petition included, in the list of allowed demands, this claim as due by and established against the estate as a fifth-class demand. The judgment was subsequently assigned to plaintiffs, Wernse and Haeussler. The administrator having failed to pay any part of it, while he was paying other fifth and sixth class claims in full, plaintiffs filed a motion in the probate court to compel payment. This motion was denied, the probate court holding that the judgment was void for want of jurisdiction in the St. Louis circuit court to render it. Plaintiffs appealed to the circuit court of Ralls county, where the judgment was affirmed, and thence to this court, where the judgment of the circuit court was also affirmed. 76 Mo. 249. This was done November 27, 1882. Several letters appear by the record to have been written by the administrator to plaintiff Haeussler at various times, and from different places, extending from the date of the first, June 30, 1876, to November 2, 1877. In all of these letters except the last the administrator talks about compromise and settlement. He suggested, at one time, payment in land; at another time, a house and lot in Louisiana, which he recommends as well worth the whole debt.

On the same day on which the appeal was taken in the cause just mentioned to the circuit court, to-wit, on the 12th day of December, 1877, both parties being present in the probate court, the plaintiffs presented the note upon which the judgment aforesaid was based, for allowance, and the cause was continued to January 16, 1878, and again continued; and on the 14th day of March, 1878, plaintiffs dismissed their cause, and withdrew the note and other papers. February 26, 1878, plaintiffs petitioned the county court of Madison county, Ill., for letters of administration on the estate of Abraham McPike, deceased; stating in their petition, in substance, that they were creditors of the deceased, in what manner, and to what extent; that their debt remained due and unpaid; that deceased had a large amount of real and personal property in said county; and that no letters of administration had ever been granted to said estate in said county. Letters were granted on the 2d day of April, 1878, and, on the 5th day of July following, the administrator, H. C. McPike, appeared in court, and filed the following motion: "And now, at this day, comes H. C. McPike, the administrator of the estate of Abraham McPike in the state of Missouri, and who is the original and principal administrator of said estate, and in his own behalf, as well as in behalf of the heirs of said Abraham McPike moves the court to dismiss the suit, and rescind the letters of administration granted William H. Hall, public administrator of Madison county, for the following reasons, viz.: That the claim of Herman Haeussler, upon whose petition letters of administration were granted, is barred by the laws of the state of Missouri; that the said Haeussler was at the time of the death of said Abraham McPike a citizen and resident of the state of Missouri, in which was intestate's domicile at the time of his death, and must recover his claim under the laws of Missouri, if at all; that all the personal property of the said Abraham McPike in the state of Illinois had all been collected and paid over to the principal administrator before the grant of administration in this state, and at the time when said grant of administration was made there was no personal property in the state of Illinois belonging to the estate of said Abraham McPike." On the following day the court, passing on this motion, dismissed plaintiff's suit, and revoked the letters. Thereupon an appeal was taken to the circuit court of Madison county where the judgment was affirmed, and it was also affirmed in the appellate and the supreme courts. 101 Ill. 423. On the 22d of November, 1878, this appeal was heard in the circuit court; parties all present and consenting, the cause was heard by the court without a jury. The record shows the finding of the court to be as follows: "Does find from the evidence in this cause that Abraham McPike, deceased, was at the time of his death a resident of the county of Ralls, in the state of Missouri; that letters of administration were very shortly after his death granted by the county court of said Ralls county to H. C. McPike, the brother of the deceased; that due notice of the grant of letters of administration and of notice to creditors was given by said administrator in said state of Missouri, as required by the laws of said state; that said plaintiffs were before and at the time of the death of said Abraham McPike, and ever since have been, residents of the state of Missouri; that the plaintiffs presented their claim against said estate before the probate court in Missouri, and the said claim is now being litigated in the state of Missouri; that the estate of said Abraham McPike is solvent, and is in due course of administration in the state of Missouri; that said Abraham McPike left no creditors in the state of Illinois, and has no personal property in the state of Illinois, except an interest in a partnership in Alton, Ill., which partnership was all settled up by the surviving partners, and the portion belonging to the said Abraham McPike's estate was paid over to said H. C. McPike, as such administrator, long before the filing of the petition in this proceeding by the plaintiffs." Plaintiffs' claim was disallowed, and the letters of administration revoked December 31, 1878. Plaintiffs appealed to the appellate court.

On the 25th of March, 1879, that court rendered its decision, affirming the circuit court. On March 18, 1881, writ of error was sued out to the supreme court of Illinois. The court delivered its opinion on the 18th day of January, 1882, affirming the decision of the appellate court. On the 19th of March, 1879, plaintiffs served upon the administrator notice of their intention to present their demand to the probate court of Ralls county for allowance. Thereafter, on the 16th day of July, same year, it was so presented, and, being disallowed, plaintiffs at once appealed to the Ralls county circuit court. There, on the 25th day of March, 1882, the case was tried by the court, and judgment rendered for defendant. An appeal was taken to this court, where, at its October term, 1885, this judgment was reversed, and the cause remanded to the Ralls county circuit court, to be proceeded with in conformity with the opinion. 86 Mo. 565. The cause was tried by the circuit court, December 9, 1886. The judgment was for the plaintiffs, and the defendant appeal...