Cassity's Appeal

BROADDUS, P. J. The original proceedings, to which the present controversy is an incident, arose in the probate court of Linn county, over the final settlement of Armstrong Cassity, the executor of the estate of Presley Pound, deceased: The final settlement tendered by the executor was approved, except as to certain claims of the executor, and distribution was ordered. The final settlement was made December 26,1902, from which the executor appealed. In April, 1892, E. R. Stephens, the intervener, instituted suit against the said executor in the circuit court to recover the sum of $1,200 for legal services “as the adviser and counselor for said executor.” A demurrer was filed by the executor to the petition therein, which the court sustained, and rendered judgment against the plaintiff and for the costs of suit. From this judgment the plaintiff appealed to this court where the said judgment was affirmed on January 4, 1904. [See Stephens v. Cassity, 104 Mo. App. 210.] Immediately after the announcement of said decision, and while the appeal of the executor on the exceptions to his final settlement was pending in the circuit court, he filed his said [717] claim against the executor in' the probate court. He also filed his petition in the circuit court asking that the matter of said final settlement be remanded to the probate court and that his claim filed in said court he heard and adjudicated. At the May term, 1904, of said circuit court the appeal from the probate court was heard. The decision was the same as that rendered by the probate court. All the parties to that proceeding submitted to the finding and judgment. The court, however, went further and remanded the case to the probate court with directions to hear and determine intervener’s claim bn file in that court, from which all the parties to the original proceeding on appeal excepted and appealed to this court. The first contention of appellants is that, when the claim in question was filed in the probate court by the intervener for allowance against the estate of the deceased that court had no power to entertain or adjudicate it for the reason that the final settlement had been made by the executor, the same revised by the court and as so revised approved and distribution ordered; and that the appeal deprived the probate court of all jurisdiction with respect to any matter relating to or affecting the estate. After the final settlement had been made with the executor, and appealed from, the probate court lost jurisdiction of the estate while the matter was pending in the circuit court, therefore the filing of intervener’s claim while the appeal was so pending conferred no jurisdiction on the former to adjudicate it. It was a nugatory act. In Burgess v. O’Donoghue; 90 Mo. 299, it is held: “An appeal to the Supreme Court from a judgment of the circuit court invests the Supreme Court with, and deprives the circuit court of, all jurisdiction over the cause,” etc. [See also, State ex rel. v. Gates, 143 Mo. 69; Spalding v. Bank, 78 Mo. App. 374.] Secondly, appellants insist that “the jurisdiction of the circuit court was limited to, and it had power to pass on and adjudicate only the matters brought to it by the [718] executor’s appeal.” If any authority is needed to sustain the proposition it will he found in Branson v. Branson, 102 Mo. 613, and 2 Woerner’s Amer. Law of Administrators, p. 1202, section 517. The intervener’s claim was not in any way connected with the final settlement, the matter on appeal from the probate court, and could not by any means be injected into the case. The circuit court was restricted to the matters and things appealed from. It was an attempt to exercise jurisdiction without authority of law, and as such its action remanding the case to the probate court, which also had no jurisdiction, as herein stated, to hear and determine intervenor’s claim, was void. As the questions already determined are conclusive of the case, it is unnecessary to notice other points made by appellants. The cause is reversed with directions to the court to set aside so much of its judgment as remands the cause to the probate court to hear and determine intervener’s claim. All concur.