Gibson v. Vaughan

Sherwood, Judge,

delivered the opinion of the court.

Gibson recovered judgment against Rawing in the Christian circuit court. After the rendition of the judgment, Rawing died and the circuit court records were destroyed by fire. On the records of the Christian probate court, thei-e is an entry in a cause entitled as above, as follows: “Now at this day comes the plaintiff in this cause and files his petition, verified by affidavit, stating that in the lifetime of the defendant he obtained a judgment for the sum of one hundred and eighty-dollars and fifty-five cents, and that the same nor any part thereof has not been paid ; and the court orders that the same be filed and classed in the fourth class of debts.” This entry is of the February term, 1866.

Under an order of the court the land of the deceased was sold for the payment of debts, not including that of the plaintiff. While the money arising from such sale was in the hands of the administrator, the plaintiff moved the court that the administrator pay over to him an amount sufficient to satisfy the judgment obtained, alleging that it had been allowed in the 4th class and was a lien on the land which had been sold by the administrator, and that the estate was insolvent. This motion prevailed and the administrator appealed to the circuit court.-where the judgment again went in favor of the plaintiff. The chief ground of the resistance offered by the administrator to the -motion was that he had never been.notified of the presentation of the claim, nor did the record of the probate court show notice given to or waived by him. It was conceded at the trial that there was a judgment rendered *420 in the circuit court in the lifetime of the deceased, in favor of plaintiff for the amount specified in the record of the probate court; that the judgment thus rendered was a lien on the real estate of the deceased at the time of his death, and that the records of the Christian circnit court, including that of the judgment mentioned, were destroyed by fire, prior to the entry in question being made in the probate records. And it was also conceded that there was no evidence of notice to the administrator or his waiver thereof to be found in such records or the files of that court, and that the estate of the decedent was insolvent.

The only point therefore which this case presents, is a jurisdictional one. The governing rule in cases of this sort is, that though jurisdiction will be, in the absence of aught in the record to the contrary, presumed as to courts of general jurisdiction, yet this presumption does not prevail in respect to those whose jurisdiction is special and limited.

In the latter class of cases the failure of some portion of the record or proceedings to show jurisdiction is necessarily fatal, as has been decided in numerous instances in this court. (State vs. Metzger, 26 Mo., 65 ; Bersch vs. Schneider, 27 Mo., 101 ; Hausburger vs. Pacific R. R., 43 Mo., 196 ; Iba vs. H. & St. Jo. R. R. Co., 45 Mo., 469 ; Cunningham vs. P. R. R., ante, p. 33.)

If a transcript of the judgment rendered in the circuit court had been filed in the probate court for classification, perhaps no notice to the administrator would have been requisite, as the alleged indebtedness having been adjudicated upon in the lifetime of the decedent, it had ceased to occupy the attitude of a demand.” This distinction between the classification of a judgment and the allowance and classification of a “ demand” would seem to be clearly marked out by the statute. (Wagn. Stat., 103, §§ 26-, 27; Carondelet vs. Desnoyer, 27 Mo., 36 .)

But as it is conceded that no transcript was filed, the case must occupy the same footing as an ordinary demand, and be in subjection to the rule requiring notice.

*421 When the transcript of a judgment is presented for classification, it bears within itself the evidences of its own verity ; not so in case the record of a judgment is destroyed; the claimant then comes before the court of probate jurisdiction, alleging the existence of two things : first, that a matter once in litigation has resulted in his favor; and second, the destruction of the record evidencing that fact.

If the record has not been supplied as pointed out by statute, both these allegations must rest in parol, and be open to dispute and dispro val. In order that they may he disputed or disproved, the administrator must have notice.

Whether the plaintiff may still have his judgment classified and then proceed to enforce his lien against the land, bound thereby at the date of the decedent’s death, we are not now called upon to determine.

Judgment reversed, and the cause remanded.

All tbe other j udges concur.