Wernse v. McPike

• Decision Date: 19 May 1890
• Parties: Wernse et al. v. McPike, Administrator, Appellant
• Court: Missouri Supreme Court

13 S.W. 809

100 Mo. 476

Wernse et al. v. McPike, Administrator, Appellant

Supreme Court of Missouri

May 19, 1890

Appeal from Ralls Circuit Court. -- Hon. Theodore Brace, Judge.

Reversed and remanded.

Silver & Brown for appellant.

(1) The judgment of the circuit court of St. Louis county on the note was void, and its classification in the probate court of Ralls county, and all the proceedings in reference to it in said court nullities. Wernse v. McPike, 76 Mo. 249. (2) The note was not presented to the probate court for allowance and notice thereof to the administrator until May 1879, more than six years after the grant of letters, and the demand was barred by the statute. 1 Wag. Stat., p. 102, secs 2, 5 and 6, and p. 104, sec. 15; Garesche v. Lewis, 93 Mo. 197; Pfeiffer v. Suss, 73 Mo. 245; Burton v. Rutherford, 49 Mo. 258; Richardson v Harrison, 36 Mo. 96; Bryan v. Mundy, 14 Mo. 458; Wernse v. Hall, 101 Ill. 423. (3) After the bar of the statute had attached, the administrator could not, by any recognition or acknowledgment of the demand, remove the bar or revive the claim. Smarr v. McMaster, 35 Mo. 351; North v. Walker, 66 Mo. 463; Cape Girardeau County v. Harbison, 58 Mo. 90. (4) Proceedings on demands in probate courts are actions at law and allowances are judgments at law, and principles applicable to suits in equity cannot be invoked in this action. Smith v. Sims, 77 Mo. 269; Bauer v. Gray, 18 Mo.App. 164. (5) The judgment of the circuit court of Madison county, Illinois, on appeal from the county court of said county, and of the appellate and supreme courts of said state, were a bar to any further prosecution of the demand in the courts of this state, and it is, therefore, res judicata. Const. of U.S. art. 4, sec. 1; Mills v. Duryee, 7 Cranch, 4 Hampton v. McConnell, 3 Wheat. 234; McElmoyle v. Cohen, 13 Pet. 312; 1 Grlf. Ev. [Redf. Ed.] sec. 534 and note; 2 Kent's Com. [11 Ed.] top pp. 96, 97; Cffutt v. John, 8 Mo. 120; Bigelow on Estoppel [4 Ed.] 37; 1 Herman on Estoppel, secs. 99, 100, 111; Freeman on Judgments, sec. 272; Embury v. Conner, 3 Comstock, 522; Louis v. Brown Township, 109 U.S. 167; Caldwell v. White, 77 Mo. 471; Shelbina, etc., v. Parker, 58 Mo. 327; Wells on Res Adjudicata, sec. 530, p. 471; Bank v. Brown, 50 Me. 214; Whiting v. Burger, 78 Me. 287; McGilroy v. Avery, 30 Vt. 538; Rogers v. Odell, 39 N.H. 452; Goodall v. Marshall, 14 N.H. 161; Lomas v. Hilliard, 60 N.H. 148.

D. H. McIntyre with J. O. Broadhead for respondent.

(1) The court committed no error in refusing the first instruction asked by defendant, to the effect that plaintiff's demand was barred by the statute. The notice served on the defendant March 19, 1879, pending the litigation was an amendment of the notice previously given by the substitution of the note in the place of the judgment of the St. Louis circuit court, as the basis of the demand. It was, therefore, a substantial compliance with the statute, and fulfilled its requirements. Tevis v. Tevis, 23 Mo. 256; Fenn v. Dugdale, 31 Mo. 580; Williamson v. Anthony, 47 Mo. 299; North v. Walker, 66 Mo. 453; Boone v. Shackelford, 66 Mo. 493; Wernse v. McPike, 86 Mo. 565. (2) Plaintiffs have acted with perfect good faith from the beginning, and have persevered in a diligent effort to have their claim allowed, and in common justice they are entitled to an affirmance of their judgment. Williamson v. Anthony, 47 Mo. 299. (3) The judgment of the St. Louis circuit court was presented for allowance and classification to the Ralls county probate court on April 15, 1874, less than fifteen months from the date of publication of the letters, the administrator was personally present in court, and made no objection to the classification and allowance of the demand. He cannot, therefore, now consistently, with good faith and justice, be heard to make an objection which he could have made at that time, but did not. Boone v. Shackelford, 66 Mo. 493; Van Renselar v. Kearney, 11 How. 297; Buckingham v. Hanna, 2 Ohio St. 551; 2 Sm. Lead. Cases [7 Am. Ed.] 672. (4) (a) The judgments of the Illinois courts could have rested upon the other grounds stated in the defendant's motion in the Madison county court to dismiss plaintiff's petition, and revoke the letters of administration, and was in fact expressly so done, by the circuit court. Wells Res. Adjudicata, sec. 226; Burlen v. Shannon, 99 Mass. 202; Dickinson v. Hayes, 31 Conn. 423; Jackson v. Wood, 3 Wend. 27; Lawrence v. Hunt, 10 Wend. 80. (b) There is no res adjudicata, because it does not appear that the finding and judgment of the circuit court necessarily involved the statute of limitations. Packet Co. v. Sickles, 5 Wall. 592; Wells, Res Adjudicata, sec. 3. (c) It does appear that it could have been and was decided without involving limitation. Packet Co. v. Sickles, 5 Wall. 592; Wells, Res Adjudicata, sec. 12. (5) Res judicata cannot be urged in this case for the reason that the service on the administrator of the amended notice of March 19, 1879, and the proceedings thereon in the probate court, the Ralls county circuit court, and the supreme court of this state, make a case essentially different in its issues and facts, from the case presented in the Illinois courts. Spurlock v. Railroad, 76 Mo. 67. (6) When there is a decision and reversal, and after a second trial the cause comes up on a second appeal, the court will not reconsider, nor, in general, even enlarge upon or explain the reasons which induced the decision before announced. Wells, Res Adjudicata, sec. 617; Kibler v. Bridges, 5 S.C. 335; Chouteau v. Gibson, 76 Mo. 38; Keith v. Keith, 97 Mo. 223.

Sherwood, J. Judge Brace not sitting; Ray, C. J., and Black, J., concur; Barclay, J., in reversing and remanding.

OPINION

Sherwood, J.

-- The Traders' Bank of St. Louis held a note for thirty-two hundred dollars 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 fifth 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 fifteenth 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, whilst 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 twelfth 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 fourteenth 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, Illinois, 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 second day of April, 1878, and, on the fifth 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...