This action is on an account against the administrator of an estate. The judgment in the trial court, on appeal from the probate court, dismissed plaintiff's claim. A new trial was granted on plaintiff's motion and from that order the administrator appealed to this court.
The account is based on a claim for services which plaintiff says she rendered to plaintiff's intestate in the latter's lifetime. No written notice of the claim was given to the administrator as required by section 203, Revised Statutes 1909. But it is enacted by section 205 of the statute that "The executor or administrator may appear in court, or, by writing, waive the service of any such notice." It is not pretended that any written *Page 459 waiver was given and the sole question is, did the administrator"appear in court" and waive notice? If the administrator appears in court and takes part in the proceedings, it is a waiver in court. [Kincheloe v. Gorman, 29 Mo. 421; Waltemar v. Schnick, 102 Mo. App. 133, 138; Madison Bank v. Suman,79 Mo. 527, 532.]
And it is claimed by plaintiff that he did so appear and take part and this claim is based on the following entry in the record of the probate court: "Now at this day, it appearing to the court, now here, that in vacation of this court, on the 19th day of February, 1918, Eliza J. Bennett, filed with the clerk of this court for allowance, against the Estate of Jacob Bennett, deceased, her claim in the sum of $1002.80, founded upon an account for services rendered decedent, during his lifetime; and it further appearing that, by agreement between all parties to the claim filed on said date by J.L. Bennett, against said estate, and all parties hereto, no action should be taken in above entitled cause until full and final settlement be made herein of said J.L. Bennett claim, it is therefore ordered and adjudged by the court that this cause be, and the same is herein continued for hearing on a date to be set by all parties hereto, subsequent to the final passage of the claim of J.L. Bennett, in said estate."
That record shows that the claim was filed in vacation and atthat time the agreement was had. That was a matter transpiring in the past — in vacation — and was not an appearance in court as the statute requires.
The trial court's first view was correct and the judgment and order sustaining the motion for new trial and arrest is reversed and the cause remanded with directions to reinstate the finding and judgment on defendant's motion. All concur. *Page 460