Viehmann v. Viehmann Ex Rel. Kaemper , 298 Mo. 356 ( 1923 )

This is a statutory action in partition, filed in the Circuit Court of the City of St. Louis, on the 25th day of June, 1920, praying partition and sale of one certain parcel of improved city real estate, the petition alleging, in substance, that said real estate devolved on plaintiffs and the minor defendant from one Jacob Viehmann, father and grandfather respectively of the parties, which estate was then and had been in the course of administration in the probate court since December 27th previous.

Defendant's second amended answer, after admitting the granting of letters of administration to Louise Viehmann, and the heirship and interest of the parties, is a pleading in the nature of an equitable cross-bill, stating, in effect, that the testator died intestate, seized of two pieces of property other than the piece sought to be partitioned by plaintiff, which were sold by the plaintiff herein, who was the administratrix of said estate, as such, to the other plaintiff, Augusta Schroeder, to satisfy a judgment obtained in the probate court by plaintiff, Louise Viehmann, for services, against the estate of Jacob Viehmann, upon service on the administrator pendente lite, and which said judgment defendant alleges was duly allowed on the fourth day of March, 1920, and placed in the fifth class of demands against said estate; it further alleges and sets up fraudulent acts on the part of plaintiffs, by means of a conspiracy to cheat and defraud defendant, and prays that the judgment claim of plaintiff, Louise Viehmann, against decedent's estate, and the order and sale made to co-plaintiff herein, Augusta Schroeder, be set aside and held for naught, and that the title to said lots be divested out of the said Augusta Schroeder, and restored to said estate and said lots be partitioned. Plaintiff's reply to said cross-bill was, first, a general denial, and, second, in substance, that the administratrix procured and published an order from the probate court directing her to sell the real estate to pay debts.

The trial court excluded evidence sought by defendant to be introduced under the cross-bill, dismissed his crossbill, and decreed partition and sale of the one piece of property set out in plaintiff's petition.

The evidence and such other matters as may be deemed important, will be referred to in the opinion.

The questions presented for determination are, first, may defendant collaterally attack and put in issue the verity of a judgment entered in the probate court, and, second, is defendant's cross-bill the proper pleading to act as a direct attack on the probate court judgment?

I. Besides alleging in his cross-bill that the claim of plaintiff, Louise Vichmann, was duly allowed, defendant's evidence tends to show the appointment of an administratorpendente lite, by the probate court, the presentation of the claim to him verified by oath, waiver of notice and entry of appearance, the call on claimant to testify, consent to immediateJudgment of hearing, the allowance of the claim and entry ofProbate Court: judgment, and the payment of the judgment in theCollateral sum of $1919.93. The judgment of the probateAttack. court, as thus set forth, tends to show regularity, is a voidable judgment only, and may not be set aside except for fraud in a direct proceeding brought for that purpose. The law is well established in this State that orders and judgments of the probate court, within their statutory powers, and concerning matters intrusted to them by law, are entitled to the same favorable presumptions arising from either affirmative statements, or the silence of their records, as are accorded in similar cases to the circuit courts. The judgment and proceedings of a court entitled to these presumptions will be upheld against collateral attack, unless it affirmatively appears in some portion of the entire record that the steps necessary to acquire jurisdiction were not taken. [Oldaker v. Spiking, 210 S.W. 59, 62 and cases cited; Wright v. Hetherlin, 277 Mo. l.c. 112; Harter v. Petty, 266 Mo. 296; State ex rel. Van Hafften v. Ellison, 285 Mo. 301; Lieber v. Lieber, 239 Mo. 1; Abernathy v. Mo. Pac. Ry. Co., 287 Mo. 30; State ex rel. Burton v. Bagby,288 Mo. 482.]

II. Having ruled that the verity of a judgment of the probate court, fair on its face, may not be attacked collaterally, it becomes necessary to determine whether defendant's cross-bill to set aside the judgment for fraud is a pleading that may act as a direct attack.

Plaintiff's suit is a statutory action to partition one described parcel of real estate. Defendant's cross-bill is a suit to set aside the judgment of the probate court and order of sale of two other described parcels of real estate for fraud and incidentally to partition same. The basis of his suit, however, is the setting aside of said judgment for fraud. He rises or falls, even in a proper action, on this hypothesis, for should the action for fraud fail, the partitioning of the two lots cannot be had.

To enable defendant to maintain his action, the cross-bill must come within the provisions of our counterclaim statute. Section 1232, Revised Statutes 1919, permits a defendant to make a statement of any new matter constituting a defense or counterclaim. Section 1233 authorizes its use when it arises out of the contract or transaction set forth in the petition as the foundation of plaintiff's claim, or connected with the subject of the action; or, in an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action.

As was said in Fulton v. Fisher, 239 Mo. l.c. 129: "Our statute does not use the word ``cross-bill,' but the office of a cross-bill is as well recognized in our practice now as it was under the old chancery practice, and it means now what it meant then. . . . The statutory counterclaim embraces a cross-bill in equity, but is not limited to that, because, under the statute, in an action on a contract, the defendant may plead any other cause of action he may have against the plaintiff arising on contract."

The cross-bill now under discussion, in so far as it relates to the cause of action stated in plaintiff's petition, cannot be sustained as a counterclaim under the last clause of the statute mentioned, because the cause of action does not arise out of a contract between plaintiff and defendant; nor can it be sustained as a cross-bill or counterclaim under the first clause because it does not state a cause of action arising out of the contract or transaction set forth in the petition of plaintiff as the foundation of a claim, nor is it connected with the subject of plaintiff's action.

To sustain defendant's pleading, it must be shown that the matters alleged in the cross-bill are germane to and within the general scope of the matters embraced in plaintiff's petition. [Fulton v. Fisher, 239 Mo. 116; Mathiason v. St. Louis,156 Mo. 196.] As also stated in Fulton v. Fisher, 239 Mo. at page 130: "A cross-bill in equity pleading is a matter of defense to the original bill, or an auxiliary suit by a defendant against plaintiff or against other defendants, either to afford the cross-pleader a more adequate defense to the original bill than a mere answer would give, or to afford him affirmative relief concerning the same matter covered by the original bill."

As we have said, plaintiff's petition is a statutory action in partition; defendant's cross-bill is a suit to set aside a judgment for fraud. The right to partition the property described in plaintiff's petition was not in any way involved in the cross-bill, and we are unable to see how a suit to set aside the judgment of the probate court for fraud could in any way affect the issues presented in plaintiff's petition. The cross-bill is not germane to the petition, nor is it defensive in its character; while it goes beyond a mere defense and asks for affirmative equitable relief, it does not touch the subject of the petition, nor does it ask for affirmative relief concerning the same matters covered by the petition. It was said in Mathiason v. St. Louis, 156 Mo. l.c. 202: "If a defendant, in filing a cross-bill, attempts to go beyond this, and to introduce new and distinct matter, not essential to the proper determination of the matter put in litigation by the original bill, although he may show a perfect case against either the complainant or one or more of his co-defendants, his pleading will not be a cross-bill, but an original bill. And no decree can be rendered on such matter."

We have reached the conclusion that the cross-bill is not germane to the petition, and does not touch or cover the same matter covered by it.

The action of the circuit court is sustained, and the judgment below affirmed. Railey and Reeves, CC., concur.