Wernse v. Hall

Mr. Justice Dickey delivered the opinion of the Court: This is the case of a claim filed hy plaintiffs in error against the estate of Abram McPike, deceased, in the county court of Madison county, Illinois. A promissory note, dated St. Louis, December 23, 1872, was made and signed by Leiper & Co. as makers, for the sum of $3000, payable sixty days after date, at the Traders’ Bank of St. Louis, to the order of A. McPike. This note, before maturity, was indorsed in blank by A. McPike, and sold, and became the property of the bank. It appears from the record that A. McPike was a resident of Balls county, Missouri, and that he died intestate early in January, 1873, and, before the maturity of the note, and that Henry C. McPike, a resident of Missouri, was appointed, by the county court of Balls county, administrator of the estate of A. McPike, deceased, and received letters of administration on the 28th of January, 1873. The note was not paid at maturity, and the same was duly protested for non-payment, on February 24, 1873, and notice thereof mailed to the administrator. This claim against the estate of Abram McPike rests upon his supposed liability as indorser of that note. His estate in Missouri is shown to have been entirely solvent. The defence interposed is a statute of Missouri, which provides that all demands against estates of deceased persons, not legally exhibited within two years after the granting of the first letters of administration, “shall be forever barred.” It is insisted that this claim is barred by that statute. The statute of Missouri provides Several modes in which a claim may be thus “legally exhibited, ” and in addition to other modes, not claimed to apply in this case, the following are mentioned in the statute: “All actions commenced against the executor or administrator * * *" shall be considered demands legally exhibited against such estate, from the time of serving of original process on such executor or administrator. ” And again: “Any person may exhibit his demand *' * * by serving upon the executor or administrator a notice in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the time of serving such notice; ” but it is also provided that “no claimant shall avail himself” of this latter mode of exhibiting his demand “unless he shall present his demands to the court (the proper county court), in the manner provided by law, for allowance, within three years after the granting of the first letters on the estate. ” It is shown that in June, 1873, an action was begun in the circuit court of St. Louis against this administrator, upon this indorsement, and that a copy of the writ and petition was served upon him July 5, 1873, and judgment rendered against him on October 16, 1873, and it is claimed by plaintiff in error that this was a “legal exhibiting” of his demand, from the time of the service of process. It is, however, shown that by the statutes of Missouri the probate court of Balls county (and of certain other counties specially named) had exclusive jurisdiction “to hear and determine all suits and other proceedings against administrators, upon any demand against the estate of their testator or intestate.” This act took away expressly the jurisdiction in such matters from the circuit court of St. Louis. It was so held in Dodson v. Scroggs, 47 Mo. 285, and again in Cones v. Ward, page 289 of same- volume, where it is said that parties can not, by consent, give that court jurisdiction. We have been referred to Tevis v. Tevis, 23 Mo. 256, as holding otherwise. This question did not arise in that ease. The claim in that case was against an estate in course of administration in the county of St. Louis. That county is not mentioned in the act giving exclusive jurisdiction to the probate court of Balls county, and certain other counties. The circuit court of St. Louis being without jurisdiction in this matter, the whole proceeding was coram non judice, and inoperative. There was no service of process in a judicial proceeding. It was in no sense a judicial proceeding, for the court had no jurisdiction of the subject matter. It is contended that the claim was legally exhibited by service of a written notice of the nature and amount of the claim, and a copy of the note and indorsement on which the claim is founded, in this, that the notice of protest was such a notice; and again, in this, that the service of a copy of the petition in the circuit court of St. Louis constituted such notice. The difficulty about this position is, that even if such proceedings be regarded as such notice, the statute says no claimant can avail himself of this mode of “legally exhibiting his claim, unless' he shall present the same for allowance, to the proper probate court, within three years of the issue of the first letters of administration. ” In this case no claim upon this indorsement was presented in the probate court of Balls county until in the year 1877,— more than four years after the date of the first letters of administration. It is true, a copy óf the void judgment of the circuit court of St. Louis was presented to the probate court of Balls county, April 15, 1874, for classification, but it was not presented for allowance. No application was made to have the claim allowed, and had it been then presented for allowance, it may well be doubted whether the demand upon the judgment should be regarded as identical with the demand upon the indorsement of the note. .We think this claim was barred by the laws of Missouri. If so, under our statute, the demand is barred here. Failing to get this claim, or that upon the void judgment, allowed in the courts of Missouri, plaintiff in error came to this State, and upon his representation that he was in fact a creditor, procured letters of administration to be issued to defendant in error, as administrator of this estate, in the county of Madison, where lies real estate belonging to the estate. When it was made apparent upon the trial that plaintiff in error was not a creditor, it was proper to not only disallow the claim, but also to enter an order revoking the letters of administration, as was done in this case. The judgment of the Appellate Court in this case is therefore affirmed. Judgment affirmed.