Wendleton v. Kingery

BROADDUS, J. — At the May term, 1891, of the probate court of Morgan county the plaintiff — defendant in error — was appointed agent to take charge of several acres of land belonging to the estate of Charles Fitzgerald, deceased. His appointment was made under authority conferred upon probate courts by section 257, Revised Statutes 1889. During the year 1898 the defendant — plaintiff in error — came into possession of said land. On the 9th day of December, 1902, while defendant was in such possession, plaintiff commenced this suit for the rent thereof. The plaintiff recovered judgment and the defendant sued out this writ of error. By an act approved May 11, 1899, said section 257 was repealed. The statement on which the cause was tried, omitting the caption, is as follows: “Plaintiff states that by order of the probate court duly entered, he was appointed agent of the estate of Charles Fitzgerald, de [69] ceased, to take charge of and rent certain lands belonging to said estate; that in obedience to said order he took charge of said lands and rented same; that in the fall of the year 1898 he sold the rent crop grown on said premises that year to the defendant, at and for the price and snm of seventeen dollars; that at said date he rented to said defendant said lands belonging to said estate as aforesaid at the price of seventeen dollars per year; that said defendant occupied said land under said contract of rental for a period of four years; that the rent of said lands and premises for the period aforesaid amounts to the snm of sixty-eight dollars,” etc. As the defendant — plaintiff in error — has not in his abstract set out any order of the court showing that a bill of exceptions has been filed within the time prescribed by the court’s order, or any statement to that effect, we can not enter into the merits of the controversy arising during the trial. We can therefore consider only such errors as may be shown by the record proper. It appears from the face of the petition that plaintiff had no right to sue as his office as agent ceased when the office itself was abolished by the act of 1899 repealing said section 257 under which he was appointed. The point is made by defendant in error that it is too late to raise the question as to his capacity to sue. Section 598 of the code in specifying upon what grounds the defendant may demur has the following: “that the plaintiff has not the legal capacity to sue.” It has often been decided that in such cases a failure to demur waives the objection. [Spillane v. Railroad, 111 Mo. 555, and cases cited.] But as this case was instituted in a justice’s court said section of the code has no application. The rules governing pleadings in justices’ courts do not'provide for a demurrer. When a case is appealed to the circuit court the rules of practice in the latter shall gov [70] ern but not its rules of pleading. [Section 4080, Revised Statutes 1899.] i Tbe record proper shows that the plaintiff .has no legal capacity to sue, for which reason the cause is reversed. All concur.