Eckerle v. Wood

• Decision Date: 10 June 1902
• Citation: 95 Mo. App. 378,69 S.W. 45
• Parties: ECKERLE v. WOOD et al.
• Court: Missouri Court of Appeals

69 S.W. 45

95 Mo. A. 378

ECKERLE v. WOOD et al.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

ADMINISTRATION OF ESTATES — DISCOVERY OF ASSETS — PROHIBITION — JURISDICTION OF PROBATE COURT.

1. A proceeding under sections 74-78, Rev. St. 1899, for the discovery of assets of an estate is a "suit pending" within the meaning of the law for taking of depositions. It is one over which the probate court has jurisdiction of the subject-matter, and a writ of prohibition will not lie to prevent the regular taking of depositions pursuant to notice in such a proceeding.

2. Where the probate court issues a citation under section 74, Rev. St. 1899, at the instance of a moving party, it necessarily decides that he is "a person interested" in the estate. That decision on that fact cannot be reviewed by a writ of prohibition.

3. A writ of prohibition cannot be correctly used to serve the purpose of a writ of error or appeal.

4. A grant of power implies a grant of all incidental authority necessary to make the principal grant effective.

5. Jurisdiction of the subject-matter means lawful authority "over that class of cases."

(Syllabus by the Judge.)

Proceedings by Frederick N. Eckerle against Augustus M. Wood and others to obtain a writ of prohibition. Judgment for defendants.

Geo. D. Reynolds, for petitioner. J. Hugo Grimm, for respondents.

BARCLAY, J.

This is a proceeding to obtain a writ of prohibition to forbid the taking of depositions by defendant Mr. Wood, a notary public in the city of St. Louis, Mo. The plaintiff is Mr. Frederick N. Eckerle. The defendants are Mr. Augustus M. Wood, the above-named notary, the St. Louis Trust Company (executor of the estate of Catherine Linze, deceased), and Henry H. Linze. The last was the husband of said Catherine. The matter in which the depositions are sought to be taken is an inquiry under the administration law (sections 74-78, Rev. St. 1899) for the discovery of assets said to be wrongfully concealed. The following facts appear to be admitted: In November, 1901, letters testamentary were granted in the probate court of the city of St. Louis to the St. Louis Trust Company upon the estate of Catherine Linze, deceased, pursuant to her will, duly admitted to probate by said court. The trust company duly qualified, and is now in charge of the estate as executor. January 18, 1902, there was presented to said probate court an affidavit of Henry H. Linze as follows (omitting caption): "Henry Linze, of lawful age, being duly sworn, on his oath states that he is the widower of Catherine Linze, deceased, and as such is interested in her estate; that he has good cause to believe and does believe that Frederick N. Eckerle has concealed or embezzled various goods, chattels, wares, merchandise, household articles, glassware, and other personal property of the deceased, the exact value of which affiant cannot state, but which he believes to be over $500.00, and the said Frederick N. Eckerle has such property in his possession or under his control, and refused to deliver them up to the St. Louis Trust Company, executor of Catherine Linze, deceased, upon demand made therefor." The probate court then issued a citation to Mr. Eckerle to appear before that court and be examined on oath concerning the personal property of said estate under the statute cited. In response to this citation Mr. Eckerle filed a sworn answer denying the alleged facts, and charging that Mr. Linze was not interested in any manner in said estate. And when the examination of Mr. Eckerle came on, the court, at the instance of the attorney of Mr. Eckerle, sustained an objection to the inquiry proposed to be had of Mr. Eckerle, on the theory, presumably, that the charge was criminal in its nature, and hence that Mr. Eckerle could not be required to give testimony against himself in the matter. Const. Mo. 1875, art. 2, § 23. The probate court, March 3, 1902, granted the trust company, as executor, until March 10, 1902, to file interrogatories in said proceeding against said Mr. Eckerle, according to section 75, Rev. St. 1899. The interrogatories were filed March 10, 1902. Thereupon the court made an order (March 15, 1902) giving Mr. Eckerle until March 25, 1902, to file his answer thereto; but no answer appears to have been filed before this proceeding was begun, May 8, 1902. April 2, 1902, the probate court adjourned for the term and continued said matter to the June term of said court, which will regularly convene on the first Monday in June ensuing. About May 1, 1902, the trust company caused notice to be given to Eckerle in usual form for the taking of depositions of witnesses, May 6, 1902, to be read in evidence in the cause entitled in said notice as follows: "In the Matter of the Estate of Catherine Linze vs. Frederick N. Eckerle on Citation to Disclose Assets." The place appointed was the office of one of the counsel in the cause, and the usual hours were named. No question of the form of the notice arises. Mr. Eckerle was also served with a subpœna to appear (at the time and place where the depositions were appointed) to testify in the cause above entitled "on behalf of plaintiff." The subpœna was issued by Mr. Wood (now defendant) as notary public. At the time and place named for the depositions the notary commenced taking testimony under the notice, and continued said hearing the next day, when Mr. Eckerle, by his attorney, came before the officer, and stated that he appeared specially to challenge his jurisdiction to take any testimony in the cause. Notwithstanding this objection it is charged that said notary caused a subpœna to be served upon another person commanding him to appear in said cause and matter on the following day. It is further alleged that the notary intends to proceed with the taking of testimony of Mr. Eckerle and other witnesses under said notice. In this state of the case counsel for Mr. Eckerle applied to the presiding judge of this court for a writ of prohibition forbidding said defendants from proceeding further to take the depositions. A preliminary rule under section 4451, Rev. St. 1899, was directed to defendants, who made a return, to which plaintiff has replied. The matter was then heard before the court as upon motion to make the rule absolute, and the foregoing facts were developed. The only decisive questions which arise are questions of law.

1. The statute under which it is proposed to take the depositions permits a full investigation of facts concerning any wrongful withholding or concealing of assets of an estate as well as embezzlement thereof. The acts of withholding or concealing such property are consistent with a perfectly honest purpose. Tygard v. Falor, 163 Mo. 234, 63 S. W. 672. There is nothing before us to show — and, indeed, no claim is made — that any infringement of the constitutional immunities of Mr. Eckerle in respect of testifying against himself is threatened; and, if such a claim were advanced, this court would have no jurisdiction to pass upon it in view of the decision of the First...