Ex parte Devoy
| Decision Date | 07 December 1921 |
| Citation | 236 S.W. 1070,208 Mo.App. 550 |
| Parties | EX PARTE: CHARLES L. DEVOY, Petitioner |
| Court | Missouri Court of Appeals |
WRIT DENIED AND PETITIONER REMANDED.
Leahy and Saunders for petitioner.
(1) The proper action to dispossess petitioner was a suit in ejectment. Rees v. Andrews, 169 Mo. 192; Blythe et al. v. Hinckley et al., 84 F. Rep. 246. (2) The order committing the petitioner was unlawful and in excess of the authority of a chancellor. Section 28, article 2 of the Constitution of Missouri; Section 1 of the Fourteenth Amendment to the Federal Constitution; Rees v Andrews, 169 Mo. 192; Johnson et al. v. Monday, 104 F. Rep. 594; Metzger et al. v. McCoy, 105 F Rep. 676; Blythe v. Hinckley, 84 F. 246; Nichols v. Boyne City Lumber Co., 156 Mich. 234; Blackwood v. Van Vleet, 11 Mich. 252; Payne v. Dougherty, 251 Ill. 396; Whiteham v. Lehner, 22 Okla. 672; First Congregational Church v. Page et al., 257 Ill 472; Kohl et al. v. Mettee, 47 S.W. 407; Brown et al. v. Horvell, 86 S.W. 306; Hughes et al. v Hannah et al., 22 S. Rep. 1897; Williams et al. v. Fowler et al., 50 A. 969. (3) The application for the writ is in proper form. Section 1877, R. S. 1919. (4) This court should issue the writ of habeas corpus. Ex Parte Webers, 205 S.W. 622; In re Clark, 208 Mo. 121; 21 Cyc. 282-283; Ex Parte Arnold, 128 Mo. 256. (5) There is no presumption of the validity of a will. The burden of proof rests upon persons seeking to uphold it. Carl v. Gabel, 120 Mo. 283. (6) The action of the probate court in admitting or rejecting a will does not tend to prove or disprove the will. Lambs v. Helm, 56 Mo. 420. (7) In the suit to contest a will, the contest acts as a supersedeas and is, in fact, an appeal. Johnson v. Brewn, 210 S.W. 55; Lamb v. Helm, 56 Mo. 420. (8) Title to real estate, until will is proven in solemn form, is vested in the heirs at law of the supposed testator, and purchase from executor or from designated beneficiary conveys no title until will is proven. Johnson v. Brewn, 210 S.W. 55; Section 225, R. S. 1919. (9) Equity will not intervene where an adequate remedy at law exists. Price et al. v. Bankers Trust Co., 178 S.W. 746. (10) The court had no authority to appoint a receiver in this case, as the party in possession was one of five joint owners and made no opposition to the other joint owners sharing possession with him.
Frank X. Heimenz for respondent.
(1) The circuit court of the city of Saint Louis, is a court of general common-law jurisdiction, and has inherent power to punish as a contempt, a wilful disobedience of its orders made in a cause pending before it, of which it has jurisdiction of the persons and subject-matter. R. S. 1919, sec. 2359; Greene Co. v. Rose, 38 Mo. 390; State ex rel. v. Harrer, 16 Mo.App. 191; Fielder v. Const. Co., 162 Mo.App. 528. (2) The order of committment in this case was made in a cause lawfully pending before the circuit court, of which it had jurisdiction, was directed against a party to the record and was a lawful order in the case. State ex rel. v. Harrer, 16 Mo.App. 191. The petitioner wilfully disobeyed the order of the court and his conduct in so doing, is a direct contempt. (4) Courts of equity have power to appoint a receiver and when that power is exercised, the receiver becomes an officer or arm of the court and any wilfull interference with the performance of the duties of the receiver or a wilful disobedience to the demand of a receiver in the discharge of his duties as set forth in the order appointing him, is a direct contempt resulting in the interference with the court's administration of the res. R. S. 1919, sec. 1449; Colburn v. Yantis, 176 Mo. 683, Neun v. Blackstone B. & L. Assn., 149 Mo. 80; Wesswoe v. Simpson, 14 Howard 52; In re Tyler, 149 U.S. 164; Porter v. Sabin, 149 U.S. 480; Stark v. Grimes, 88 Mo.App. 409; Abramsky v. Abramsky, 261 Mo. 125; Ex Parte Crenshaw, 80 Mo. 447. (5) Respondent was committed after a full and complete hearing on a citation requiring him to appear specifically to show cause why he should not be punished for contempt; he had his day in court, and was given full opportunity to show to the court that he was not in contempt. (6) The writ should not be sustained because under the order of commitment, the petitioner can free himself from restraint by complying with the court's order. In re Norritt, 117 F. Rep. 451; Limerich v. Rebach, 204 Mo.App. 325. Contempts are of two kinds. Civil or Criminal. Punishment for a civil contempt is in its nature a species of execution whereby the refusal to obey a lawful order is enforced, and criminal in the nature of a fine or penalty as a punishment for the doing of or failure to do an act prohibited or commanded to be done, and a fine or penalty is inflicted as a punishment. The petitioner in this case is guilty of a civil contempt and he was committed for failure to obey and perform a lawful order. Limerich v. Rebach, 204 Mo.App. 324; Fielder v. Const. Co., 162 Mo.App. 528. (8) The title to the res is not and cannot be in issue in this proceeding; irrespective of who is seized of the premises, the court can take it into custody through the instrumentality of its receiver, administer it through the same channel, and hold it for the use and benefit of the parties ultimately found entitled thereto. Stark v. Grimes, 88 Mo.App. 409.
Habeas Corpus. Original Proceeding.
--This is an original proceeding. The petitioner, Charles L. Devoy, presented his application for writ of habeas corpus to a member of this court in vacation, alleging in his petition that he was unlawfully imprisoned and restrained of his liberty by the sheriff of the city of St. Louis. The writ was granted as prayed and made returnable to this court. In due time the sheriff made return, whereupon petitioner filed a reply which is in the nature of a demurrer to the return. This calls for our judgment on the pleadings.
The pertinent facts, as gathered from the record, are as follows:
Maria Devoy died in the city of St. Louis in December, 1920. She left certain property, among which is a parcel of real estate located in the city of St. Louis. This petitioner is a son of said Maria Devoy, and resides in this property, same being a three-story dwelling house known as and numbered 5837 Cates avenue. This was the homestead of the Devoys. Immediately upon the death of Mrs. Devoy an instrument purporting to be the last will and testament of said Maria Devoy was filed in the probate court of the city of St. Louis. In this purported will Mrs. Devoy bequeathed practically all of her property, including this family residence, to a daughter, Mrs. Cartwright.
Petitioner thereupon filed in the circuit court of the city of St. Louis a suit to contest the will, the petitioner having remained in possession of the property after his mother's death. It seems that there are five heirs, and in the absence of the will, each holding a one-fifth interest in said estate.
On March 27, 1921, the day after the said will contest suit was filed, the probate court appointed an administrator pendente lite of the estate of Maria Devoy. Said administrator pendente lite duly qualified and is still acting as such.
On July 5, 1921, Mrs. Cartwright, sister of the petitioner, filed an application with the Judge of the circuit court in said will contest suit, asking for a receiver to take charge of said residence and real property. Within a few days thereafter the circuit court appointed a receiver, with directions to take charge of said real estate, to keep and preserve same from waste and deterioration.
It appears that petitioner prayed an appeal from said order appointing said receiver but has furnished no supersedeas bond. Thereafter the receiver, under the order of the court, demanded that petitioner vacate said property and that he surrender possession of said residence to the receiver. Petitioner declined to surrender possession.
Thereupon, on October 7, 1921, the Judge of said circuit court issued a citation to petitioner to appear and show cause why he should not be held for contempt in failing to give possession of said real estate to the receiver. Thereafter, to-wit on October 17, 1921, after a hearing, petitioner and his counsel being present, the Judge of said circuit court held petitioner to be in contempt for failing to deliver possession of said property, as aforesaid, and the petitioner was ordered committed until such order was complied with and possession of said property delivered to the receiver.
The petition before us incorporates the order of commitment which seems to be a copy of the judgment of contempt. This recites that, after a hearing, a receiver was appointed to take charge of the property above referred to, to-wit a residence at 5837 Cates avenue, with full power to take exclusive possession of same in order to prevent waste and deterioration of same and to collect rents therefrom. The receiver gave bond, and thereupon attempted to take possession of said property by demanding same from petitioner, and that petitioner refused to give possession of said property to the receiver; that petitioner was cited to appear before the circuit judge, and upon such appearance, in person and by counsel, and after a hearing, the court found that demand had been made by the receiver of the petitioner for this property, and that this petitioner refused to turn over possession to such receiver, and that thereupon the court found that Charles L. Devoy, the petitioner, was guilty of contempt of the circuit court, in that he wilfully offered resistance to the lawful order and process of that court by refusing to deliver possession of the premises hereinbefore described to the...
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