In re Estate of Whitson

• Decision Date: 07 June 1886
• Citation: 1 S.W. 125,89 Mo. 58
• Parties: In the Matter of the Estate of John Whitson, Deceased; A. J. Whitson, Widow, et al., Appellants
• Court: Missouri Supreme Court

1 S.W. 125

89 Mo. 58

In the Matter of the Estate of John Whitson, Deceased; A. J. Whitson, Widow, et al., Appellants

Supreme Court of Missouri

June 7, 1886

Appeal from Franklin Circuit Court. -- Hon. A. J. Seay, Judge.

Affirmed.

Rudolph Hirzel for appellants.

Neither the probate court nor the circuit court had authority to pass upon the merits of the case after the motion for change of venue was presented. R. S., sec. 3730; State v Lack, 58 Mo. 502; Gale v. Miche, 47 Mo. 328; R S., sec. 3729; Corpenny v. City of Sedalia, 57 Mo. 88.

Crews & Booth for respondent.

OPINION

Norton, J.

This cause was tried in the circuit court of Franklin county on an appeal from a judgment of the probate court of said county approving report of T. A. Lowe, administrator de bonis non of the estate of John Whitson, deceased, of the sale of real estate for the payment of debts against said estate.

The circuit court on a trial de novo rendered judgment approving and confirming said report, and from this judgment an appeal is presented to this court, and we are asked to reverse the judgment on the alleged ground that neither the probate court nor circuit court had jurisdiction to pass upon the merits of the case, after in each of said courts a motion for change of venue had been made. It is held in the cases of Henderson v. Henderson, 55 Mo. 534; Colvin v. Six, 79 Mo. 198 and State v. Daniels, 66 Mo. 192, that a court in which an application for change of venue is made does not lose jurisdiction of the same by the mere fact of the application, but that it is the order granting the change which divests the court of jurisdiction, and confers it upon the court to which the change is granted. Inasmuch as where an appeal is taken from the judgment of a probate court it is provided by section 299, Revised Statutes, that the filing of the transcript and papers in the office of the clerk of the circuit court, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same without regarding any error, defect or other imperfection in the proceedings of the probate court, we deem it unnecessary to review the action of the probate judge in refusing to grant a change of venue while the same was pending before him.

The only other question presented by the record is, was error committed by the circuit court in overruling the motion for a change of venue made in that court. The application for the change was made by A. J. Whitson, the widow of deceased, in which it is...