White v. McFarland

• Decision Date: 03 May 1910
• Citation: 128 S.W. 23,148 Mo. App. 338
• Parties: WHITE v. McFARLAND.
• Court: Missouri Court of Appeals

128 S.W. 23

148 Mo. App. 338

WHITE v. McFARLAND.

St. Louis Court of Appeals. Missouri.

May 3, 1910.

1. EXECUTORS AND ADMINISTRATORS (§ 453)— SETTING ASIDE JUDGMENT — GROUNDS — IRREGULARITIES.

Where an action of replevin is against an executrix in her representative capacity, a default judgment for the value of the property, rendered against her personally, is irregular, if not void, and may be set aside on application therefor within the statutory period.

2. EXECUTORS AND ADMINISTRATORS (§ 430)— PERSONAL LIABILITY.

An executor or administrator is personally responsible for property he detains from a claimant as an asset of the estate of the deceased, with knowledge that it did not belong to decedent, but to claimant.

3. EXECUTORS AND ADMINISTRATORS (§ 430)— LIABILITY IN REPRESENTATIVE CAPACITY— REPLEVIN.

Where an executor or administrator inventoried in good faith as assets of the estate of decedent personal property in possession by decedent at the time of his death, and then refused to turn the same over to a claimant, believing in good faith that the property was an asset of decedent's estate, replevin would lie against him in his representative capacity, and not against him in his individual capacity, since, under Rev. St. 1899, § 4476 (Ann. St. 1906, p. 2454), judgment in replevin must be either for the return of the property or for its value at the election of plaintiff.

4. JUDGMENT (§ 117)—DEFAULT JUDGMENT— EXTENT OF RELIEF.

Where a defendant defaults, the relief granted against him may not be greater than that demanded in the petition; and where a defendant fails to answer a petition against him in a representative capacity a personal judgment may not be rendered against him.

5. PLEADING (§ 34) — PETITION — CONSTRUCTION.

The intendments of a petition must be taken most strongly against plaintiff, especially where a default has occurred.

6. EXECUTORS AND ADMINISTRATORS (§ 443)— ACTIONS IN REPRESENTATIVE CAPACITY — PETITION.

A petition in replevin, which described defendant as executrix, and which alleges the death of decedent, the granting of letters testamentary to defendant, and her qualifying as executrix and acting as such, and which alleges plaintiff's ownership of the property in controversy, and defendant's refusal to surrender the same on demand, when considered in connection with the summons directed against defendant as executrix, states a cause of action against defendant as executrix, and not an action aginst her individually.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by Mary E. White against Lucy A. McFarland, executrix of Charles W. McFarland, deceased. From a judgment setting aside a judgment for plaintiff, she appeals. Affirmed.

H. A. & C. R. Hamilton, for appellant. Barclay, Fauntleroy & Cullen, for respondent.

GOODE, J.

Plaintiff, Mary E. White, brought an action of replevin to the October term, 1907, of the circuit court of the city of St. Louis, against Lucy A. McFarland, describing the defendant in the caption of the case as Lucy A. McFarland, executrix of Charles W. McFarland, deceased. The opening allegation of the petition is as follows: "Plaintiff states that on or about the 1st day of April, 1907, Charles W. McFarland departed this life, and that thereafter, to wit, on the 22d day of April, 1907, letters testamentary were duly granted to Lucy A. McFarland, the defendant, by the probate court of the city of St. Louis, Missouri, and that thereupon defendant duly qualified as executrix and is now acting as such." After making that averment, plaintiff proceeded to state she was the owner of and lawfully entitled to the possession of certain personal property, to wit, seven promissory notes, all signed by James Sexton, dated September 14, 1906, payable to William Dwyer, one for $1,700, due three years after date, and bearing interest at the rate of 8 per cent. after maturity, and six for $51 each, representing the interest on the principal note, and falling due every six months after date; that said notes were indorsed in blank by the payee, William Dwyer. The petition further alleged plaintiff was the owner of a deed of trust, of the same date as the notes, executed by said Sexton, and conveying lots in the city of St. Louis to the trustee, William Dwyer, to secure the notes; alleged said notes and deed of trust were of the value of $2,006; that they had been demanded of defendant; that defendant wrongfully detained them from plaintiff, to the latter's damage in the sum of $100. Wherefore plaintiff demanded judgment against defendant for the recovery of said property and $100 damages for the detention. On the filing of said petition a summons was issued from the office of the clerk of the circuit court, directed to the sheriff of the city of St. Louis, commanding him to summon Lucy A. McFarland, executrix of Charles W. McFarland, deceased, to appear before the judge of the circuit court on the first day of the next term, to be held in the courthouse in said city on the 1st day of October, 1907, then and there to answer the complaint of Mary E. White as set forth in the annexed petition.

The writ of summons was returned by the sheriff as having been served by delivering a copy, and a copy of the petition as furnished by the clerk, to Lucy A. McFarland, "defendant herein." The defendant not having answered or filed any other pleading within the first three days of the October term, 1907, but having made default, an interlocutory judgment was entered against her, and it was ordered by the court the petition be taken as confessed and an inquiry be had. Afterwards, at the December term, 1907, defendant still remaining in default, the interlocutory judgment was made final. The entry of the final judgment recited the cause had come on for a hearing, and the plaintiff had appeared by attorney, but defendant had come not; that the cause was submitted to the court on the pleadings and evidence, and the court, being fully advised in the premises, "did find that at the time of the institution of this suit and at the present time, the plaintiff was and is the lawful owner and entitled to the possession of the personal property described in plaintiff's petition, and that the value of said property was and is $2,006. It is therefore considered and adjudged by the court that plaintiff do have and recover of the defendant, Lucy A. McFarland, the possession of the following personal property [describing the notes and deed of trust], or, at the election of plaintiff, she have and recover of the defendant, Lucy A. McFarland, the sum of $2,006, the value of said property as found by the court, together with her costs and charges herein expended and that execution against defendant, Lucy A. McFarland, issue therefor."

On December 26, 1908, and during the December term, an execution was issued on the judgment in the name of Mary E. White, as plaintiff, to the use of the Oxymel Realty Company, a corporation, as assignee. This execution recited the judgment for the recovery by plaintiff of the property in controversy, describing the same, that plaintiff have and recover from defendant, Lucy A. McFarland, said property, or, at her election, the sum of $2,006, the value of the property as found by the court, and her costs and charges in that behalf expended, which were adjudged for plaintiff, as appears of record. The execution concluded by commanding the sheriff as follows: "That without delay you cause to be delivered to the said plaintiff the possession of said personal property, or at the election of plaintiff the value thereof, and that of the goods and chattels and real estate of the said Lucy A. McFarland you cause to be made the aforesaid sums and costs; that you have the same before the judge of said court on the first Monday of February next, to render to the said plaintiff the sums and costs aforesaid; and that you certify to said judge how you execute this writ. And have you then and there this writ." The execution was duly attested by the official signature of the clerk of the circuit court and the seal of the court. After receiving the writ the sheriff, July 7, 1909, levied the same on certain real estate belonging to Lucy A. McFarland in person and advertised it for sale.

Afterwards, on July 22, 1909, at the December term, 1908, of the court, Lucy A. McFarland appeared and moved the court to recall and quash the execution, levy, and proceedings therein, because they were irregular and not in conformity to law, assigning various reasons—among others these: The execution was directed against her personally and her property; whereas, the action was against her only as the executrix of Charles W. McFarland. The court had no jurisdiction to render the personal judgment on which the execution was issued. The execution was irregular, because it sought to enforce relief in excess of what the petition prayed; was irregular, because the claim was one of probate jurisdiction, and should have been certified to the probate court. On the same day, January 22, 1909, defendant, Lucy A. McFarland, as...