
    STATE ex rel. LANGSTON, Appellant, v. CANTERBURY et al., Respondents.
    St. Louis Court of Appeals,
    April 2, 1907.
    1. ADMINISTRATION: Proceeding Against Former Administrator: Sureties on Administrator’s Bond. A summary proceeding under section 48, Revised Statutes 1899, against a former administrator who has resigned or whose letters have been revoked, should also be against his sureties, and a judgment rendered against such former administrator should be against his sureties also.
    2. -: -■: Judgment as to Only One ot Severa, Defendants. In a proceeding under section 48, Revised Statutes 1899, against a former administrator, where the judgment was rendered against the administrator alone and there was no dismissal of the cause as against his sureties, the judgment rendered was not a final disposition of the cause and the same was still pending as to the sureties.
    3. -: -: Liability of Sureties. In a proceeding against an administrator under section 48, Revised Statutes 1899, if the same was dismissed as to the sureties and judgment rendered against the administrator, a subsequent action on the administrator’s bond against such sureties was a proper proceeding and they were liable in such proceeding for the amount found to be due by the administrator.
    
      Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.
    Reversed and remanded.
    
      Orr & Luster for appellant.
    Tlie judgment of the Howell Circuit Court disallowing as credits the two notes in question is binding on Sam P. Canterbury against whom that judgment was rendered, and is equally binding on his sureties. State ex rel. v. Donegan, 12 Mo. App. 190, 88 Mo. 874; State 'ex rel. v. Leslie, 83 Mo. 60; State ex rel. v. James, 82 Mr. 509; State ex rel. v. Crensbauer, 68 Mo. 254; Dix v. Morris, 66 Mo. 514; State ex rel. v. Holt, 27 Mo. 340 State ex rel. v. Rucker, 59 Mo. 17; Stearns on Surety-ship, sec. 193.
    
      James Orchard for respondent.
    Our second contention is that plaintiff proceeded in the probate court of Howell county, Missouri, under section 48, Revised Statutes 1899, in lieu of an action on the administrator’s bond, and we contend that he is now estopped from suing on the bond. An administrator de bonis non may elect to proceed in a summary wav, or he may sue on the bond; in other words, plaintiff has his option of either instituting an action on the. bond, or he may pursue the mode pointed out by the statute. Wickham v. Page, 49 Mo. 529; Brown v. Weatherby, 71 Mo. 152. Where there is an election between two inconsistent remedies, a person will be confined to the one which he first offers and adopts. Nanson v. Jacobs, 93 Mo. 445. The issues which might have been raised and litigated in any case are as completely barred by the final decree therein as if they had been directly adjudicated and included in the verdict. Donald v. Wright, 147 Mo. 646; Beesheers v. Banking Assn., 73 Mo. App. 298.
   BLAND, ÍP. J.

On' October 27, 1893, defendant S. T. Canterbury was appointed administrator of the estate of Thomas Johnson, deceased, by the probate court of Howell county. The other defendants are sureties on his bond as administrator. For some reason, not stated, Canterbury ceased to be administrator of Johnson’s estate and plaintiff, T. J. Langston, was appointed administrator cle bonis non, and under the provisions of section 48, Revised Statutes 1899, commenced a summary proceeding against Canterbury, in the probate court of Howell county, to compel Canterbury to make his final settlement, to which the sureties on his bond were made parties and were duly notified. In due course the cause was appealed to the circuit court, where on a trial de novo the circuit court, by allowing Canterbury credits for the payment of two promissory notes given by Johnson in his lifetime, one for one thousand dollars and one for twelve hundred dollars, which were not and never were probated against Johnson’s estate, found the estate indebted to Canterbury in the sum of twelve dollars. Langston appealed the cause to the Supreme Court. The Supreme Court held that Canterbury, as administrator, had no right to pay the notes out of the assets of the estate without they were first probated and was not entitled to credits therefor, and remanded the cause to the Howell Circuit Court, with directions to follow the law as declared in the opinion. [Langston v. Canterbury, 173 Mo. 122, 73 S. W. 151.] After the cause was remanded, to-wit, on January 7, 1904, the case was retried to the Howell Circuit Court and judgment rendered against Canterbury, as administrator of Johnson’s estate, for the sum of $2,339 and fifty dollars costs, and the judgment was certified to the probate court of Howell county, where it was entered of record.

The answer of the sureties in the present action denied that they were parties to or bound by the judgment of January 7,1904, of the circuit court, and alleged that by tbe proceedings therein they bad been released from tbe payment of said judgment or from any liability on tbe bond of Canterbury. For an equitable defense, tbe sureties set up tbe payment of tbe two unprobated notes by Canterbury as administrator, alleged that the estate was worth fifty thousand dollars over and above all tbe debts and that tbe payment of tbe two notes was made with tbe consent and on the advice of tbe adult heirs of tbe deceased and tbe legal distributees of bis estate. On proof of this equitable defense being made, tbe learned trial judge offset tbe notes against tbe judgment sued on and rendered judgment for tbe defendants, from which plaintiff appealed.

Section 48, supra, under which tbe summary proceedings in tbe probate court were commenced, provides that the probate court “shall ascertain tbe amount of money ... in tbe bands of such administrator or executor, or that came into, bis bands and remain unaccounted for at the time of bis resignation or removal from office or revocation of bis letters, and to enforce such order or judgment against such administrator or executor and bis sureties, if they bad due notice of tbe proceedings,” etc. Tbe judgment should have been rendered against Canterbury and bis. sureties. [Brown v. Weatberby, 71 Mo. 152.] It is stated in appellant’s abstract, that it was admitted on tbe trial, that at tbe time tbe judgment was taken, the cause was dismissed as to all tbe parties defendant except Canterbury. Tbe respondents, in their statement of tbe cause, say: “They (tbe sureties) were not named in the judgment, neither was there any order of court dismissing them from tbe suit then pendingthat this fact was not denied at tbe trial, but was not incorporated in tbe bill of exceptions; and in support of these statements, respondents have filed, as an additional abstract, tbe certificate of the clerk of tbe Howell Circuit Court, in which tbe clerk states be has searched tbe records of bis office and failed to find any order of record dismissing- said cause as to the sureties. This certificate is no part of the record and cannot be considered by us.

The judgment recites: “On this seventh day of January, 1904, this cause coming on to be heard and both plaintiff and defendants being present by their respective attorneys, announce ready for trial and the matters in issue are submitted to the court without a jury.” It then proceeds to state the account between Canterbury and the estate, and finds Canterbury, as administrator, is indebted to the estate in the sum of $2,399, and concludes: “It is therefore considered and adjudged by the court that the plaintiff, as administrator de bonis non, recover of and from said Sam F. Canterbury, former administrator, the said sum of $2,399 and that this judgment be certified to the probate court of Howell county, Missouri, as the final and surrendering settlement herein.” The judgment nowhere disposed of the case as to the sureties or took any notice whatever of them, but to recite their appearance, their announcement as ready for trial, and the submission of the cause to the court. The judgment against Canterbury purports to be a final one, upon which execution might-issue. [Section 48, supra.] The present action is to recover on the same cause of action, to-wit, the amount of the notes paid by Canterbury without authority, for w’dch the judgment of January 7, 1904, was recovered, ’’on 773, Revised Statutes 1899, provides:

“"lien there are several defendants in a suit, and some of them appear and plead and others make default, an interlocutory judgment by default may be entered - mh such as make default, and the cause may proceed a .gainst the others; but only one final judgment shall be given in the action.”

This section has been held to be mandatory. [Henry v. Gibson, 55 Mo. 570; Holborn v. Naughton, 60 Mo. App. 1. c. 103; Beshears v. Vandalia Banking Assn., 73 Mo. App. 1. c. 299; Sater v. Hunt, 75 Mo. App. 1. c. 472.] The judgment rendered against Canterbury alone was not a final judgment, for the reason it made no disposition of the case as to the other defendants, hence the cause is still pending as to the sureties (Pittsburg Plate Glass Co. v. Peper, 96 Mo. App. 1. c. 597, 70 S. W. 910, and cases cited) and should be disposed of by setting aside the irregular judgment rendered against Canterbury and by trying the case again and rendering such a judgment as will dispose of .the case as to all the defendants. If this is done there will be no1 occasion to' prosecute the present action and it should be dismissed. However if the original action was in fact dismissed as to the sureties, the present action is properly brought against the sureties, and their liability to the administrator cle bonis non has been conclusively settled by the decision of the supreme court supra. Whether or not they have an equitable remedy over against the distributees of Johnson’s estate, we will not discuss or decide.

The judgment is reversed and the cause remanded.

All concur.  