Wencker v. Thompson's Administrator

BARCLAY, J. This is an appeal from the allowance and classification by the circuit court of a probate demand founded on, an alleged judgment in favor of Susan E. Houston, which judgment is in the following terms: “In the Circuit Court, Wednesday, March 16,1881. “State of Missouri, County of St. Charles, ss. — 63 — Susan E. Houston, Plaintiff, v. . Damages. John A. Thompson et al., Defendants. “The motion of said plaintiff to amend the judgment herein coming on to he heard and being submitted to the court it is considered by the court that said motion be sustained and that said judgment against "W. Thompson, Catherine Thompson and Cornelia Thompson be and the same is hereby set aside and that said judgment to be entered against John A. Thompson. “It is therefore considered by the court that said plaintiff have and recover against defendant John A. Thompson the sum of two hundred and fifteen dollars and fifty cents damages together with six per cent interest per annum thereon, from March 3, 1880, and costs, and have thereof execution.” The present case began in the probate court of St. Charles county, Missouri, where plaintiff, on August 13, 1900, filed a certified copy of the foregoing judgment. There is no evidence in this record of any previous notice to the administrator by way of exhibition of the demand to him. The case was ordered continued on several occasions by the probate court, apparently, however, without any appearance on the part of defendant, until April 15, 1901, when the judgment was allowed as a demand against'the estate in charge of the defendant, and was placed by the probate court in the sixth class. April 17, 1901, the defendant, as administrator of the estate of John A. Thompson, took an appeal in this case to the circuit court of the county. In the circuit court, December 6, 1901, defendant (appearing only for the purpose) moved the court to dismiss the cause because no exhibition of the demand had been made,_ or any notice thereof given, to the administrator prior to the presentment of. said demand — 64 — for allowance and classification. The motion was overruled and exception saved. Thereupon followed other moves by defendant which plaintiff insists had the effect of a general appearance by defendant. We shall not have occasion to pass upon that matter, for reasons, which will appear. The circuit court ultimately found in favor of the plaintiff and entered the following judgment, December-6, 1901: “Susan E. Houston’s Adm., Plaintiff. v. Appeal from Probate Court- John A. Thompson’s Adm., Defendant. “Now at this day come the said parties, by their respective attorneys, and this cause coming on to be beard, by consent of parties, the same is submitted to .the court for trial, sitting as a jury, on the pleadings and evidence adduced. And the court being now sufficiently advised in the premises doth find for the plaintiff and doth assess the amount of his recovery at the sum of four hundred and eighty-two dollars and seventy-one cents, the amount of said debt; and the court finds for plaintiff in the further sum of sixty-two dollars and sixty-cents as for costs in the original case; making the total amount of plaintiff’s recovery on the demand mentioned the sum of five hundred and forty-five dollars and thirty-one cents. It is therefore considered and adjudged by the court that the said plaintiff recover of John A. Thompson’s estate the sum of five hundred and forty-five dollars and thirty-one cents and costs. And it is ordered by the court that a copy of this judgment be certified to the probate court of St. Charles county for allowance in the sixth class.” This is the judgment from which the pending appeal was taken finally by the defendant to this court after the usual preliminaries. — 65 — 1. There is no recital or other showing in the record before us that plaintiff’s demand (founded on the judgment of March 16, 1881, already quoted) was exhibited to the defendant as administrator of the estate of John A. Thompson, at any time prior to the beginning of the proceedings in the present cause in the probate court of St. Charles county, August 13, 1900. Such exhibition thereof was required, according to the last ruling on that subject in the Supreme Court. McFaul v. Haley, 166 Mo. 56. Nor is there any showing of any appearance by the defendant to plaintiff’s claim prior to defendant’s appeal to the circuit court, April 17,1901. Respondent claims that said appeal amounted to a general appearance, and thereby waived any other notice to defendant. That is now the law governing appeals in ordinary actions begun before a justice of the peace, because of an express statute. R. S. 1899, sec. 4060. Before the enactment of the proviso in that section, some cases declared that an appeal from a justice did not have such effect. Brandenberger v. Easley, 78 Mo. 659; Fare v. Gunter, 82 Mo. 522. While other decisions expressed the rule which the statute last cited embodies. Fitterling v. Railway, 79 Mo. 504; Witting v. Railway, 101 Mo. 631. But we need not determine which view is authoritative as applied to cases of appeal from the probate to the circuit court. Let it be conceded that such an appeal amounts to a full appearance and a waiver of any other exhibition of the demand to the administrator. Then would the date last mentioned be, at all events, the earliest exhibition of the demand which defendant could be justly claimed to have had. The notice which constitutes an exhibition of a demand to an administrator may, indeed, be waived by him; but in that event the date of the waiver is to be taken as the date of the exhibition or presentment of the demand. Madison Co. Bank v. Suman, 79 Mo. 527. The judgment sought to be asserted as a claim against the estate was rendered March 16, 1881. The — 66 — appeal from the probate court was taken April 17,1901. The fatal interval oí more than twenty years between the dates last mentioned is an insuperable barrier to plaintiff’s recovery, under the law in force when the original judgment was pronounced. R. S. 1879, sec. 3251, same as sec. 6796, R. S. 1899. The existing law on the subject (R. S. 1899, sec. 4297) was enacted in 1895. But it is not to be applied to judgments rendered before it took effect. R. S. 1899, sec. 4298. This judgment before us must be presumed paid because of the lapse of twenty years, in the absence of any proof to the contrary in the record as it now stands. 2. At the trial in the circuit court counsel for the defendant clearly made known to the court that defendant relied on the bar of limitation of twenty years. It was not necessary to file a written plea to that effect either in. the probate or in the circuit court. The probate court, according to our statute law, hears and determines such demands “in a summary way without the form of pleading.” R. S. 1899, sec. 200. On appeal to the circuit court the cause is tried anew without formal pleadings. R. S. 1899, sec. 285; Cole County v. Dallmeyer, 101 Mo. 57. To invoke the bar of limitation it is only needful in such cases to bring that defense clearly to the attention of the trial judge. An oral plea is quite sufficient. Carder v. Primm, 47 Mo. App. (St. L.) 301; Sanders v. Robertson, 23 Miss. 389; Smith v. Remington, 42 Barb. 75; Bromwell v. Estate, 139 Ill. 424. 3. The old judgment which lies at the root of this case seems to be the same which this court held to be a nullity in Houston’s Admr. v. Thompson’s Admr., 87 Mo. App. (St. L.) 63, upon the record as it then stood. But as the cause at bar is to be remanded for the reasons already given, we do- not find it imperative to inquire whether or not the difference between the facts shown by the record in the ease last cited and those dis — 67 — closed on the present appeal is sufficient to avoid the effect of that adjudication. The judgment should be reversed and the cause remanded. It is so ordered. Bland, P. Jand Goode, J., concur.