279 S.W. 188 (Mo.App. 1925), The State of Missouri at Relation of Zeppenfeld v. Calhoun

Citation:279 S.W. 188, 219 Mo.App. 482
Opinion Judge:DAUES, P. J.--
Party Name:THE STATE OF MISSOURI at the Relation of ROBERT M. ZEPPENFELD, Relator, v. HONORABLE JOHN W. CALHOUN, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent
Attorney:Robert M. Zeppenfeld for relator. Taylor, Mayer & Shifrin, for respondent.
Judge Panel:DAUES, P. J. Nipper, J., concurs; Becker, J., dissents.
Case Date:September 29, 1925
Court:Court of Appeals of Missouri
 
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Page 188

279 S.W. 188 (Mo.App. 1925)

219 Mo.App. 482

THE STATE OF MISSOURI at the Relation of ROBERT M. ZEPPENFELD, Relator,

v.

HONORABLE JOHN W. CALHOUN, Judge of the Circuit Court of the City of St. Louis, Missouri, Respondent

Court of Appeals of Missouri, St. Louis

September 29, 1925

          PRELIMINARY RULE DISCHARGED.

         Robert M. Zeppenfeld for relator.

         The only difference between a motion for rehearing required by statute and not required by statute is this: Where required by statute, such motion is a prerequisite step to an appeal; where not required by statute, an appeal will lie without first filing such motion. But in either class the filing and entertaining of such a motion has the effect of keeping the judgment from becoming final until the motion is ruled upon. Kingman & Co. v. Western Mfg. Co., 170 U.S. 675; Cherokee Nation v. Whitmire, 223 U.S., l. c. 111; U. S. v. Ellicott, 223 U.S., l. c. 539; Mahoning Valley Ry. Co. v. O'Hara, 196 Fed. l. c. 947; Chandler v. Gloyd, 217 Mo. 395. Whether mandatory or voluntary, so long as such a motion is being entertained, the court retains jurisdiction and may continue its jurisdiction from term to term. It is not necessary that the practice and jurisdiction in each court be prescribed by statutes applicable only to that court. The probate court is a court of record. Constitution Art. VI, sec. 33; R. S. 1919, secs. 2323, 2541. In the absence of other provision, the practices and procedure of the circuit court apply to the probate court so far as not inconsistent with the limitations of that jurisdiction. It has certain jurisdiction which is not dependent upon statutes referring to what may be done after its judgments become final. As a court of record it must have the power to consider a timely motion for rehearing. Statutes declaring within what time an appeal must be taken all refer to the time from which the judgment begins to run as a final judgment. These statutes as to time for appeal cannot by inference destroy the inherent power of a court to decide upon questions pending before it. The probate court had the power to continue said motion and did continue said motion to the following term. The court still retained jurisdiction over the case. The court had the power to sustain said exceptions and to grant said rehearing or to deny same. Until so doing the judgment was not final and therefore not appealable. State ex rel. v. Bland, 189 Mo. 197.

         Taylor, Mayer & Shifrin, for respondent.

         (1) The allowance of attorney fees constitutes an expense of administration and is not a demand under the provisions of section 181, Revised Statutes 1919. In re Lutz Estate, 175 Mo.App. 427. (2) Not being a demand, section 211 of Revised Statutes 1919, is not applicable, and the only section applicable is sections 282, and 283, Revised Statutes 1919. In re Fitsch Estate, 179 Mo.App. 434; Schills Estate, 231 S.W. 641. (3) No provision is made in the statutes for a motion for rehearing or new trial from an allowance for attorney fees, and the allowance of attorney fees constitutes a final judgment from which an appeal must be taken within ten days after the term in which it is allowed without the necessity of any further motions or pleadings of any kind. Secs. 282 and 283, R. S. 1919. (4) An appeal from the probate court is not for the purpose of correcting any errors made by the probate court, but vests the circuit court with jurisdiction to try the matter de novo. R. S. 1919, sec. 289. (5) No provision being made in the statutes for a motion for rehearing or a new trial from an order of the probate court, a motion for rehearing such as was made by Mrs. Horwitz is merely a suggestion to the court and has not the effect of carrying over to the next term, the matter which the probate court had already passed upon, thereby permitting the probate court to retain jurisdiction thereof beyond the term. Marsala v. Marsala, 288 Mo. 501, 232 S.W. 1048; Liberty Central Trust Co. v. Roy, 245 S.W. 1085; Stocke v. Albert, 8 Mo.App. 578; Casey v. St. Louis & San Francisco Railroad Co., 146 Mo.App. 614, 124 S.W. 562; Scott & Colbern...

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