97 S.W. 650 (Mo.App. 1906), The State ex rel. Pinger v. Reynolds

Citation:97 S.W. 650, 121 Mo.App. 699
Opinion Judge:JOHNSON, J.
Party Name:THE STATE OF MISSOURI ex rel. JOHN P. PINGER et al., by their Next Friend, Respondent, v. STERLING P. REYNOLDS, Judge, etc., Appellant
Attorney:Woodson & Woodson for respondent and appellant. Kendall B. Randolph for respondents.
Case Date:November 19, 1906
Court:Court of Appeals of Missouri
 
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Page 650

97 S.W. 650 (Mo.App. 1906)

121 Mo.App. 699

THE STATE OF MISSOURI ex rel. JOHN P. PINGER et al., by their Next Friend, Respondent,

v.

STERLING P. REYNOLDS, Judge, etc., Appellant

Court of Appeals of Missouri, Kansas City

November 19, 1906

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and the cause remanded.

Woodson & Woodson for respondent and appellant.

(1) Appellees seek to evade that statute by alleging, "That the said probate judge arbitrarily and without any evidence found that John P. Pinger was a nonresident minor." But unfortunately for the appellee's position, the judgment of the probate court finds that he was a non-resident, which carries absolute verity upon its face until set aside in a direct proceeding instituted for the purpose, and mandamus is not such a proceeding. Dixon v. Judge, 4 Mo. 286. The above case is on all-fours with the case at bar. County Court v. Inhabitants, 10 Mo. 679; Dunklin Co. v. District Co. Court, 23 Mo. 449; Atkinson v. Railroad, 81 Mo. 50; Castleman v. Relfe, 50 Mo. 583. (2) The same rule of verity applies to judgments of courts of limited jurisdiction, such as probate courts. Johnson v. Beazley, 65 Mo. 250; State v. Daniels, 66 Mo. 192; Camden v. Plain, 91 Mo. 129; Delworth v. Rice, 48 Mo. 124. (3) The demurrer should have been sustained for the reason stated in the second grounds assigned therein, which is as follows, to-wit: Second, "Because an appeal does not lie from the order of the probate court appointing a curator of minors." R. S. 1899, sec. 3535; R. S. 1899, sec. 278; Looney v. Browning, 112 Mo.App. 195; State ex rel. v. Fowler, 108 Mo. 465; State v. McCowan, 80 P. 954. (4) The demurrer should have been sustained for the third ground assigned, which is as follows, to-wit: "Third, because an appeal does not lie from an order of the probate court refusing to appoint the person as their curator, chosen by the minors as their curator." The power of the probate court to approve or disapprove the selection made by the minor is clearly a discretionary power from which no appeal lies. This is true of all discretionary powers. State ex rel. v. Flad, 108 Mo. 614; State ex rel. v. Marshall, 82 Mo. 484; Dixon v. Circuit Judge, 4 Mo. 286; Fisk v. St. Louis, 145 Mo. 600. (5) The demurrer should have been sustained for the reasons stated in the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth grounds thereof, which are in substance that Caroline Pinger has no interest individually as agent nor as natural guardian of the minors which would warrant her to make and file the affidavit for the appeal from the judgment of the probate court appointing James A. Gibson, curator of the minor relators, to the circuit court. McCarty v. Rountree, 19 Mo. 348; Spilane v. Railroad, 111 Mo. 555; State ex rel. v. Stead, 143 Mo. 248. A demurrer is the proper practice to reach that defect. Higgins v. Railroad, 36 Mo. 431; Gregory v. McCormick, 25 S.W. 565. (6) The alternative writ prays for an order of this court allowing an appeal from said orders of the probate court, which this court has no power or jurisdiction to make. It is well-settled principle that the peremptory writ must conform strictly to the alternative mandamus, being necessarily limited as to form by the terms of the alternative writ. State ex rel. v. Railroad, 76 Mo. 147, 42 U.S. 429. (7) The decree of the circuit court ordering the issuance of the peremptory writ is fatally defective in this: It peremptorily orders the respondent without delay to allow the appeal from the probate to the circuit court, and in the next breath orders the probate court without delay to allow John P. and Lillian Pinger to choose their own curator.

Kendall B. Randolph for respondents.

(1) The mother is the natural guardian. R. S. 1899, sec. 3477. Such mother has a right to represent her minor child in court. Brandon v. Carter, 119 Mo. 572. (2) Minors over fourteen years of age having no guardian, may choose one. R. S. 1899, sec. 3485. (3) Appeals from the probate court in matters of guardianship are provided for by section 3535, Revised Statutes 1899. (4) Subdivision 4 of section 1674, Revised Statutes 1899, provides in reference to the jurisdiction of circuit courts. State ex rel. v. Anthony, 65 Mo.App. 554. (5) John P. Pinger was squarely denied the right to select a curator under the pretext that he was a nonresident minor, although the records of the probate court showed to the contrary. The domicile of a minor is the home of his parents. Lacey v. Williams, 27 Mo. 280; 15 Am. and Eng. Ency. Law, p. 38. (6) Mandamus is the proper remedy where the probate court refuses to do those things which the law arbitrarily fixes as his duty. Where the law fixes a right the probate court can be made to follow the law by mandamus. State ex rel. v. Fowler, 108 Mo. 470; Burge v. Burge, 94 Mo.App. 15; State ex rel. v. Collier, 62 Mo.App. 38. (7) The appeal lies under the fifteenth clause of Section 278, R. S. 1899. Owens v. Link, 48 Mo.App. 534. If section 1674, R. S. 1899, part 4, means anything whatever, or was enacted for any purpose it means that a review of every act of the probate court may be had in the circuit court, by means of one of the four remedies hereinbefore named, otherwise minors are at the mercy of the judge, who can do right or wrong, as he pleases. (8) The natural guardian must be entitled to represent, protect and defend the minors, else a probate judge and adverse curator can have all matters under their exclusive control, and can with impunity deny to minors the rights given them by statute. Palmer v. Oakley, 2 Douglas (Mich.) 471; Perry v. Brainard, 11 Ohio 442. (9) The contention of the appellant that the minors can have but one chance in the selection of a guardian is neither the spirit nor letter of the statute. (10) The court of appeals can correct the judgment, if it finds it not to be in conformity with the law, without reversing the case. They can give to these respondents whatever rights they are entitled to.

OPINION

[121 Mo.App. 703] JOHNSON, J.

--This is a mandamus proceeding originated in the circuit court of Buchanan county. The material facts alleged in the alternative writ in substance are as follows: The relators...

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