Baker v. Tener

• Decision Date: 10 January 1938
• Docket Number: No. 5832.,5832.
• Citation: 112 S.W.2d 351
• Parties: BAKER v. TENER, Probate Judge.
• Court: Missouri Court of Appeals

112 S.W.2d 351

BAKER v. TENER, Probate Judge.

No. 5832.

Springfield Court of Appeals. Missouri.

January 10, 1938.

Appeal from Circuit Court, Newton County; E. E. Smith, Judge.

Action in mandamus by Mary Baker against Honorable R. W. Tener, Probate Judge. From a judgment granting a writ of mandamus, defendant appeals.

Affirmed.

Rice & Carver and Leo H. Johnson, all of Neosho, for appellant.

F. P. Sizer, C. E. Reed, and W. J. B. Myres, all of Monett, for respondent.

ALLEN, Presiding Judge.

This is an action in mandamus, brought in the circuit court of Newton county, by Mary Baker, petitioner, against R. W. Tener, judge of the probate court of Newton county, to compel him to grant an appeal in an insanity proceeding. The circuit court ruled in favor of Mary Baker, respondent herein, and granted a writ of mandamus, from which order R. W. Tener, judge, has appealed to this court.

In order to pass on this case intelligently, it is necessary to state some of the preliminary facts and happenings prior to the filing of the writ of mandamus.

On August 28, 1936, Henry Spangler, by information in the probate court of Newton county, charged that his father, Nicholas Spangler, was of unsound mind, and incapable of managing his affairs. A hearing was had before a jury in the probate court, which jury found that Nicholas Spangler was of unsound mind and incapable of managing his affairs. Henry Spangler was appointed guardian of Nicholas Spangler, in accordance with section 452, R.S.Mo.1929, Mo.St.Ann. § 452, p. 285. On the 8th day of September, Mary Baker, a niece of Nicholas Spangler, filed her affidavit for appeal to the circuit court of Newton county. This appeal was from the judgment of the probate court of Newton county, finding Nicholas Spangler of unsound mind and incapable of managing his affairs.

At the time of the rendition of the judgment it was agreed between the attorneys and the probate judge that a bond in the sum of $1,750 would be sufficient. On September 9, 1936, the court made an order granting the appeal of Mary Baker, who appealed on behalf of Nicholas Spangler, upon condition that she give an appeal bond, to be approved by the court, in the sum of $1,500. On September 14th, attorneys for Mary Baker, who appeared as attorneys for Nicholas Spangler in the probate court, were notified that the judge of the probate court expunged from its records the order granting the appeal and fixed the bond for appeal at $5,000.

The evidence discloses that Mary Baker, respondent herein, tendered a bond to the probate court in the sum of $1,750, which was refused by that court, and which court refused to accept an appeal bond in a sum less than $5,000.

Thereafter, Mary Baker, respondent, filed a petition for mandamus in the circuit court of Newton county against R. W. Tener, judge of the probate court. The petition alleged that an affidavit for appeal had been filed by her, and that the attorneys for Nicholas Spangler notified the court they would appeal from the judgment of the jury and that it was agreed between the various attorneys in the case that the appeal bond would be $1,750; that this was later reduced to $1,500 and that R. W. Tener, judge of the probate court, after receiving the affidavit for appeal, of Mary Baker, and after making the order granting the appeal upon the condition of filing of the $1,500 bond, vacated the order and fixed the amount of the bond in the sum of $5,000, and that Mary Baker had tendered to the court, in time prescribed by law, a bond in the sum of $1,750.

The petition further alleged that the appellant herein, R. W. Tener, Probate Judge, refused to certify and transmit the cause from the probate court to the circuit court of Newton county.

An alternative writ of mandamus was issued on the 26th day of September, by the circuit court of Newton county, ordering R. W. Tener, Probate Judge, and his clerk to approve the bond in the sum of $1,750 and transmit to the circuit court of Newton county, all the records in the matter of the insanity proceedings, and that they appear on the 12th day of October, the first day of the regular October term of the circuit court of Newton county, to show cause for their refusal to so do, and to make return to the writ.

Appellant, R. W. Tener, judge of the probate court, filed answer refusing to obey the alternative writ of mandamus, and alleged that Mary Baker was a blood relative of Nicholas Spangler and filed an affidavit for appeal from the verdict of the jury in the probate court of Newton county, finding Nicholas Spangler of unsound mind, and denied that he granted the appeal of said cause to the circuit court of Newton county or caused the same to be spread upon the record. He then admitted that on September 9th he made the following order of record in the probate court of Newton county: "Now comes Mary Baker and files her affidavit of appeal from the verdict of the jury and judgment of the Court in the above entitled matter, which is sustained by the Court and an appeal is granted to the Circuit Court of Newton County, Missouri, on condition appellant give an appeal bond to be approved by this court in the sum of $1500.00."

And that he made the order of appeal conditioned upon the giving of an appeal bond in the said sum of $1,500, which was to be approved by him as judge of the probate court, and that the record did not disclose the same had been approved; and that he did not intend to grant the appeal until the bond had been filed and the sureties thereon were duly qualified and approved by him.

He further admitted that he advised petitioner, respondent herein, through her attorneys that he would approve a bond for $1,500 if otherwise acceptable, and that no such bond was submitted. He further admitted that he had told petitioner's attorney that he would require a bond in the sum of $1,750, and admitted that a bond in the sum of $1,750 was tendered to the court, but that said bond was not acceptable because of the fact that the persons signing the bond as principal and sureties were wholly unacceptable to the court, and that the court found that such persons were not of good financial standing, for the reason they did not own sufficient real and personal property to be in fact liable on such bond and to make it collectible, and that appellant, R. W. Tener, Probate Judge, ordered petitioner, respondent herein, to submit a sworn property statement of all the signatories of any bond submitted, which the petitioner refused to do, and that the order was vacated, granting an appeal upon the filing of the $1,500 bond, and expunged from the record, and that the amount of bond in the sum of $5,000 was fixed in view of section 288, R.S.Mo.1929, Mo.St.Ann. § 288, p. 183, to protect the estate of Nicholas Spangler, insane, against all debts, damages, and costs incurred by reason of the appeal. The answer further denied that the appeal bond in the sum of $5,000 was unreasonable.

The reply of the petitioner, Mary Baker, denied the allegations in the answer and alleged that the appellant, R. W. Tener, Probate Judge, failed and refused to consider the approval of any bond in any amount submitted by Mary Baker, in a sum less than $5,000. That the respondent to the writ, appellant herein, failed and refused to consider the sureties on the $1,750 bond, and failed and refused to ascertain in any degree whatsoever the statements as to the property of the signatories of the submitted $1,750 bond, and failed to ascertain the sufficiency of their statements.

The peremptory writ or final judgment directed that R. W. Tener, judge of the probate court, appellant herein, file in the circuit court of Newton county all the records, in his office pertaining to the case of Henry Spangler vs. Nicholas Spangler, an insanity hearing, and that the said judge file the records immediately, conditioned upon the filing of a cost bond by Mary Baker, in the sum of $2,000; the principal and sureties upon said bond to be approved by the judge of the circuit court of Newton county. Motion for rehearing was filed by R. W. Tener, Probate Judge, appellant herein, and overruled. Affidavit and bond were duly filed and approved and this case is before us on appeal from the order of the circuit court of Newton county to the probate court of Newton county, granting a final order of mandamus.

Some evidence was introduced in support of the petition for mandamus, but the record does not disclose, nor do we have before us, the judgment of the probate court in the insanity proceedings, nor the order of that court appointing Henry Spangler guardian of Nicholas Spangler; but the record discloses that the judgment and order appointing Henry Spangler guardian of Nicholas Spangler were separate and distinct orders and judgments of the probate court. The evidence discloses, further, that after judgment some conversation was had between the parties, regarding an appeal bond in the sum of $1,750; that the accrued court costs were $500; that later Judge Tener reduced the appeal bond to $1,500; and that an affidavit for appeal in the insanity proceedings was filed by Mary Baker, and an order was made, granting an appeal, conditioned upon her giving an appeal bond, to be approved by the probate court in the sum of $1,500. Later, and during the same term, this order was expunged from the records and the amount of the appeal bond fixed at $5,000.

There was evidence of other suits having been filed and that some of the parties to the suits were bondsmen on the bond filed in the probate court in the sum of $1,750, which bond was tendered by the attorneys for Mary Baker, and which was not approved by the court; and that some of the bondsmen were produced and examined as to their qualifications as bondsmen. There was also some correspondence between the parties.

Appellant herein contends that mandamus will not lie in ...