The State ex rel. Pinger v. Reynolds
| Decision Date | 19 November 1906 |
| Parties | THE STATE OF MISSOURI ex rel. JOHN P. PINGER et al., by their Next Friend, Respondent, v. STERLING P. REYNOLDS, Judge, etc., Appellant |
| Court | Kansas Court of Appeals |
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.
--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 are minors, each over the age of fourteen years, and reside with their mother (who was appointed and appears as their next friend) at her domicile in Buchanan county. They own a valuable estate in that county as tenants in common and on and prior to the 13th day of May, 1905, Henry May was the curator of their estate. On the date mentioned he resigned and his resignation was accepted by the probate court. At that time John Pinger, one of the relators, was temporarily absent from home attending school in California. He sent to his mother a written request that H. E. Rich be appointed curator and Mrs. Pinger and her daughter, the relator Lillian, appeared together in open court and requested the appointment of Mr. Rich as curator of both estates. Whereupon the probate court entered of record the following order:
The defendant is the probate judge, who made said order, and it is charged that he "arbitrarily and without any evidence having been presented to him found that John P. Pinger was a non-resident minor and arbitrarily and without complying with the statutes, and without finding that the choice of the minors was unsuitable and incompetent, disapproved of their choice and without giving them an opportunity to make another selection cut off their right to select a curator and denied their right to make such selection, and arbitrarily and much to the humiliation of the minors and their mother and their family ordered that the public administrator and ex-officio public guardian take into charge and custody their estate."
In a few days after this order was made, the minors, acting through their mother as their natural guardian, filed a motion in the probate court to set aside the order on the grounds that the court was in error in finding that John P. Pinger was a non-resident; in disapproving of the selection made by the minors; in appointing the public administrator to take charge of their estates; and in denying them the opportunity to make a selection of their own. When this motion came on for hearing the minors presented themselves in court for the purpose of exercising their right to nominate a curator, but this right was denied them and their motion was overruled. Their mother then filed an affidavit for appeal and an appeal bond in the sum of $ 500, but defendant denied their right to appeal and refused to allow it. The relief invoked is expressed in the command to defendant appearing in the alternative writ, that "immediately after the receipt of this writ you do . . . allow the appeal of these relators from the said probate court or permit the said relators to choose a curator of their estate or show cause," etc.
The return to this writ filed by defendant is a demurrer, which raises several questions of law of vital importance. It was overruled by the learned judge and defendant refusing to plead further, a peremptory writ was ordered to be issued and from this judgment defendant appealed.
Defendant by electing to stand on his demurrer to the alternative...
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