CONCURRING OPINION. I concur in the above opinion but desire to amplify my views relating thereto.
Appellant's primary, if not her sole contention, is that a term of the probate court held on the 2nd day of January, 1934, pursuant to an adjournment on December 20, 1933, was not an adjourned term of the regular November Term, 1933, and that the notice (otherwise regular) that the claim would be heard on the 2nd day of January, 1933, was not merely irregular but absolutely void, and the judgment subject to collateral attack and prohibition for the reason that the term of the court held on January 2, 1934, was part of the regular November Term, 1933, and that, for this reason, the notice returnable to January 2, 1934, was void and conferred upon the probate court no jurisdiction over the person of the respondent.
It seems to me that the statutes conclusively establish that appellant's contention is not sound.
In addition to section 195, R.S. 1929, which expressly permits a notice to be made returnable either to the "next regular or adjourned term of the court," the following sections of the statute deal with and define "adjourned" and "special" terms of the court: Sections 1850, 1851, 1852, 1853 and 1854.
Section 1850 provides that, if the term is not held according to its adjournment it should stand adjourned from day to day until the evening of the third day, when the sheriff shall, by proclamation, adjourn the court to the next regular term; or, where there is only one judge of the court and he cannot attend on the first day, he may notify the sheriff and the sheriff shall, by proclamation, adjourn the court as the judge may direct.
Section 1851 supra provides:
"Special or adjourned sessions of any court may be held in pursuance of such proclamation or in continuation of the regular term, when so ordered by the court in term time, the order being entered in its record."
It is perfectly apparent that, where the court is adjourned under either of these sections, it is but a continuation of the regular term and a part thereof. Nevertheless, it is a "special or adjourned session," which is an adjourned term and not a "special term," *Page 122 expressly provided for in sections 1852, 1853 and 1854 supra. These last three sections apply only where the court has been regularly adjourned until the next term, and, before the convening of the next regular term, the court, in pursuance thereto, calls a "special term." This special term is no part of the regular term. It is as separate and disconnected therefrom as is one regular term from another. Sections 1852, 1853 and 1854 apply only to the circuit and criminal courts and have no application to the probate courts. In other words, there is no authority for the probate court to call a special term of the court after the regular term has been adjourned.
Either one of two things is true: Either there is no such thing as an adjourned term of the probate court unless it is a continuation of the preceding regular term, or there is no such thing as an adjourned term of the probate court. Section 195, R.S. 1929, supra, expressly provides for an adjourned term of the probate court, and appellant's contention in the instant case, reduced to its last analysis, reads out of the section the word "adjourned" so that, to adopt appellant's contention in the instant case, would be judicial legislation.
This is the construction that has been put directly upon these statutes by our Supreme Court in the Cole County case, cited in the opinion of this court supra. That case deals directly with this question. The court there says:
". . . This order must be taken and construed as a whole, and when this is done it amounts to saying this: `The regular term is now closed, but an adjourned term will be held on the twenty-sixth of this month.'
"The statute concerning courts of record provides that `special or adjourned sessions' may be held in continuation of the regular terms when so ordered in term time. [Section 1044.] These special or adjourned terms are continuations of the regular term, and yet they are called adjourned terms, and the statute provides that demands may be allowed by the probate court at a regular or adjourned term. [Section 198.] The order made on August 22 was sufficient and it gave the court the power to hold an adjourned term on the twenty-sixth of that month, and the order made on that day gave the court the power to hold a further adjourned term on September 11, and the court had the power to allow demands at either of these adjourned terms, notice of the presentation of the same having been given, which was done in the present case." [Cole County v. Dallmeyer, 101 Mo. 57, l.c. 66, 13 S.W. 687, l.c. 688, 689.]
If the 11th of September was an adjourned term in that case (as it is directly held that it was), to which the notice could be made returnable, then it necessarily follows that the adjourned term held on the 2nd day of January in the instant case was an adjourned term, to which the notice could be made returnable. *Page 123
In addition to the facts recited in the opinion of the court in the instant case, the record shows that the probate court was in session on December 20, 1933, and adjourned to December 28, 1933, continuing in session December 29th and 30th, and January 1st and 2nd. While the record does not show it, we take judicial notice of the fact that December 31, 1933, was Sunday; hence, the adjourned term which began on December 28th was in continuous session for five consecutive court days and the notice in the instant case was not returnable to the first day of the adjourned term rendered it void, but, as before stated, appellant's contention is that the notice could not be made returnable to the adjourned term which began on January 28, 1933, for the reason that it was a part of the regular November, 1933 term. The fact that the notice was not made returnable to the first day of the adjourned term is a mere irregularity which does not render the notice absolutely void.
There is a broad and plain distinction between a process that is absolutely void and one that is merely irregular. The rule is very clearly stated as follows:
"A defect in the form or matter of the summons or other process not absolutely destructive of its validity, or an irregularity or defect in the service of it upon defendant, although material and sufficient to cause the reversal of the judgment on a proper application, does not deprive the court of jurisdiction, and therefore does not expose the judgment to collateral impeachment. . . ." [34 C.J. Title "Judgments," sec. 837 d, 533, 534, 535.]
This is the rule that is established by a concensus of judicial opinion. It is nowhere more forcefully stated than by our own Supreme Court:
". . . So, also, might he have objected to the shortness of the service and have asserted his right to the full six days' notice by moving at the proper time to make that objection. But he did not see fit to do so. He was as competent to waive the full length of time of service as he was to appear without any notice whatever. The personal service of the process of the court brought the judicial power of the latter to bear upon him. He had his `day' to object to the process, if he did not deem it sufficient because not timely, or for any other reason; but he did not avail himself of that opportunity. He certainly could not, by ignoring the command of the writ, deprive the court of authority to determine as to the sufficiency of its service. It was for the court, not the party, to decide whether or not it was sufficient. It held it to be good, and rendered judgment accordingly. In contemplation of law, Mr. Bouton was before the court, for he had been personally summoned to appear there, and might have done so. If the call for his appearance was too sudden, the court's ruling that it was adequate may be error, which could have been rectified by seasonable *Page 124 and direct moves for that purpose, but such error could not defeat the court's jurisdiction to render a judgment conclusive upon him, or subject that judgment to successful attack collaterally." [Leonard v. Sparks, 117 Mo. 103, l.c. 109, 22 S.W. 899, l.c. 900.]
This case has been cited and followed in later cases.
In the instant case the appellant undoubtedly had her day in court. Looking at substance and not at form, the second day of January was as good a day to hear the claim (although it was the fifth day of the adjourned term) as was the first day. The fact that it was the fifth day instead of the first day was clearly not absolutely destructive of its validity. It related only to form and not to substance and was at most a mere irregularity that in no way deprived appellant of any right to a full and fair hearing of the claim. It was for the court and not for appellant to decide whether there was sufficient notice. Appellant cannot collaterally attack the court's decision even though it might be erroneous on account of the irregularity, as is directly decided in the Leonard case supra.
Counsel for appellant in the instant case relies strongly on the case of State ex rel. v. Pratt, 183 Mo. App. 209, 170 S.W. 418, in which the Kansas City Court of Appeals, in an original proceeding, prohibited the probate court of Macon County from enforcing its judgment, under somewhat similar facts. The claimant in that case was the wife of the administrator. The facts, as recited by the court, are:
"On January 29, 1913, Sallie A. Mairs exhibited to her husband, as such administrator, a demand against the estate in the sum of $1706.65. . . . Dr. Mairs waived service of notice of the presentment of the demand and on the following day Mrs. Mairs and her witnesses went to the probate court, which was then in session at Linneus, to present the claim and procure its allowance. Dr. Mairs did not accompany them but remained at Browning. On finding that the claimant was the wife of the administrator the court appointed Fred W. Powers an attorney `to defend against such claim.' Mr. Powers was notified by telephone and appeared in court a few moments after his appointment. He offered no objections to an immediate hearing of the claim and assisted in the interrogation of the witnesses introduced by Mrs. Mairs. . . ." [183 Mo. App. 209, l.c. 211, 170 S.W. 418.]
On this state of facts the court held that the judgment allowing the claims was absolutely void and subject to collateral attack, and prohibited its enforcement.
It will be observed that the Pratt case differs from the instant case in that, while the claim was presented to the administrator, there was no notice as to when it would be heard, and it was in fact heard the day after the claim was presented to the administrator. Under the plain terms of the statute the claim must be both presented to the administrator and a written notice given of the time that it will be heard, *Page 125 or there must be a voluntary appearance of the administrator, in order to confer jurisdiction on the court over the person of the administrator. These facts are sufficient to distinguish that case from the instant case.
After discussing the proper office of the writ of prohibition, the court in that case says:
"As stated, the claim was exhibited to the administrator at Browning on January 29th and he waived service of notice in writing on that date. The claim was filed the next day and the hearing and adjudication followed in the course of an hour. The position of the relator is that `the filing of the demand in the probate court on January 30, 1913, gave the probate court jurisdiction of the claim, but it did not confer jurisdiction to hear the same on the day it was filed. The probate court did not have jurisdiction to hear the claim until the next regular or adjourned term after it was filed,' citing sections 203, 204, 205, Revised Statutes 1909." [183 Mo. App. 209, l.c. 214, 215, 170 S.W. 418, l.c. 419.]
The court sustained the relator's contention.
From this it will be seen that the court was of the opinion that the notice there was sufficient to confer jurisdiction on the court to have heard the claim at the next regular or adjourned term, but did not confer jurisdiction upon the court to hear the claim the next day after it was presented. If the court meant to hold that the fact that the judgment of allowance was premature, rendered the judgment absolutely void and subject to collateral attack, its opinion is in direct conflict with the repeated rulings of our Supreme Court to the contrary, as is clearly shown by Reed Bros. v. Nicholson, 158 Mo. 624, l.c. 631, 59 S.W. 977; Nave v. Todd, 83 Mo. 601, l.c. 606; Branstetter v. Rives, 34 Mo. 318, and other Missouri cases that might be cited.
The judgment in the instant case was not premature. The appellant had the full ten days' notice of the hearing of the claim, required by the statute, and the only defect in the return day of the notice is that January 2, 1934, was the fifth day of the November, 1933, adjourned term instead of the first day, which is clearly a mere irregularity and does not render the judgment void and subject to collateral attack.
For these reasons I fully concur in the opinion of the court affirming the case.