Zorn v. Farrell

SMITH, J. With slight alterations, we have used appellant’s statement for the facts in this case. This is an appeal from a judgment of the Circuit Court of Howell County quashing its preliminary writ of prohibition and refusing its permanent peremptory writ wherein Ollie B. Zorn, Executrix of the Estate of Will H. Zorn, deceased, was plaintiff and G. J. Farrell, Judge of the Probate Court of Howell County was the defendant. The facts relevant to this appeal are contained in the admissions in the pleadings of the parties and the testimony of the probate judge, ’and are not controverted.. - The B. F. Goodrich Rubber Company had a claim in the sum of $744.97 against the estate of Will H. Zorn, growing out of a surety-ship contract executed by the deceased for one C. E. Watts. The B. F. Goodrich Rubber Company obtained a judgment against Watts in'1933 for $914.73 which was reduced by execution to $744.97. *119 On August 28, 1933, the Goodrich Rubber Company filed a demand in the Probate Court of Howell County against the estate of Will H. Zorn for the balance due from Watts on the judgment based on the suretyship agreement of Will H. Zorn. The executrix received notice of the exhibition of the claim November 8, 1933. On December 21, 1933, the Goodrich Rubber Company served a notice on the attorney for the executrix that the demand filed on August 28, 1933, would be taken up and submitted to the probate court, in adjourned session, on January 2, 1934. The attorney for the executrix acknowledged service of the notice and there is no complaint as to this service. On January 2, 1934, at the adjourned session of the November, 1933, term of the Probate Court of Howell County, the probate judge rendered a default judgment allowing the claim against the estate of Will H. Zorn, specifically basing his judgment upon the notice dated December 21, 1933. The executrix did not appear on January 2, 1934, and was not represented by counsel at the hearing. June 1, 1939, the administratrix filed her final settlement in the probate court, ignoring the demand of the B. F. Goodrich Rubber Company against the Zorn estate and that company filed exceptions to the settlement and the court rejected the settlement and ordered the administratrix to satisfy the judgment in full. The administratrix after due notice, applied to the Circuit Court of Howell County for a writ of prohibition. A temporary writ of prohibition was issued and the probate judge filed a return to the writ which admits the facts necessary to a determination of the question raised by this appeal. There is no controversy over the facts in this case. The record disclosed that the statutory time for the commencement of the November term was on November 13, 1933, and that the term actually started on that day and was in session for five days, and was designated by the probate court as the regular term, and that thereafter, there were several sessions designated as adjourned days, or meeting of the adjourned term. The next regular session of the court was to bé held on February 12, 1934. The facts are the probate court started at the designated time for a regular term, and was in continuous session for five days, and later-held court on several days designated as “adjourned terms;” and that on December 21, 1933, notice was given to the executrix that the claim would be presented to the probate court for allowance on January 2,1934. There is no controversy over the giving of this notice, and it is not claimed that such notice was not given, for acknowledgment of service was signed by the attorney of the executrix. There is no contention made that the attorney did not have authority to acknowledge service. Three assignments of error are presented but each and all of them go to the one point, that since the notice of presentment was served *120 after the commencement of the regular November Term, 1933, and, of course before the beginning of the next regular term in February, it was not a legal notice to appear on January 2, 1934, and that since it was for appearing on January 2, 1934, the probate court did not have jurisdiction to render a judgment on January 2, and since that was an invalid judgment the circuit court committed error in not making permanent his writ of prohibition. This, as we view it, calls for a construction of the statutes of this State with reference to presentment and allowance of claims against estates. "We find that section 195, R. S. 1929, page 128, Mo. Stat. Ann. is as follows: “Any person desiring to establish a demand against any estate shall deliver to the executor or administrator a written notice containing a copy of the instrument of writing or account on which it is founded, and stating that he will present the same for allowance at the next regular .or adjourned term of court.” Section 2050, R. S. 1929, p. 2645, Mo. Stat. Ann. provides that the probate courts “shall hold four terms annually, commencing on the second Monday of February, May, August and November and may hold special or adjourned terms at any time when required.” In an early opinion of our Supreme Court, Cole County v. Dallmeyer, 101 Mo. 57, at page 66, we find this language used: “These special or adjourned terms are continuations of the regular term, and yet they are called adjourned terms, and the statute provides that demands may be allowed by the probate court at a regular or adjourned term. ’ ’ We have been cited no case, nor have we found one that holds that a claim may not be presented at an adjourned term, if sufficient notice as to time has been given. The statute provides for certain regular terms of probate courts, but it also provides for special or adjourned terms. It also provides that claims may be allowed at adjourned terms. The record shows that there was an adjourned term of this eourt held oh January 2, 1934, and that notice was given more than ten days before, that the claim would be presented for allowance on that day. The court met. on that day; proof was made to the court that notice had been served on the adverse party more than ten days prior thereto that the claim would be presented, and the claim was presented and allowed as a judgment against the estate. Since the statute, section 195, supra, provides that demands may be presented at an adjourned term of the court, and since the facts show that this demand was presented at an adjourned term of the court, and since our Supreme Court has said “that demands may be allowed by the probate court at a regular or adjourned term,” we are forced to the conclusion that the probate court in this instance had sufficient jurisdiction to determine the issues, and since there was no appeal from *121 the order or judgment oí the probate court, the judgment became a final judgment against the estate. Since we have reached this conclusion, it naturally follows that our conclusion is that the circuit court did not err in quashing the preliminary writ of prohibition, and that the judgment should be affirmed. It is so ordered. Tatlow, P. J., concurs in separate opinion; FulbrigM, J., concurs.