Gaebler's Estate, In re
| Decision Date | 15 April 1952 |
| Docket Number | No. 28290,28290 |
| Citation | 248 S.W.2d 12 |
| Parties | In re GAEBLER'S ESTATE. HAEFNER et ux. v. GAEBLER'S ESTATE. |
| Court | Missouri Court of Appeals |
Mattingly, Boas & Richards and Robert E. Brauer, St. Louis, for appellants.
Frank Landwehr, Grover C. Sibley, St. Louis, for respondent.
This is an appeal by Wilbur G. Haefner and Neva Haefner from a judgment of the Circuit Court of St. Louis County dismissing their claim filed in the Estate of Amelia B. Gaebler, deceased. The claim was originally filed in the Probate Court of St. Louis County. The facts, as they appear from the transcript on appeal, which includes the records and proceedings of the Probate Court and the Circuit Court, are as follows:
The claim was filed in the Probate Court of St. Louis County on December 22, 1948, and was in the nature of an action for money had and received. In substance, it was alleged in said claim that on April 1, 1941, claimants, who were husband and wife, executed and delivered to Amelia B. Gaebler their promissory note for the sum of $4,800, with interest at five per cent. per annum, payable semi-annually, which note was secured by a deed of trust on real estate owned by said claimants. It was further alleged that Amelia B. Gaebler placed said note in the possession of Joseph F. Koehr, with full authority in said Koehr to collect the principal and interest due thereon; that claimants paid the full amount due on said note, principal and interest; that receipts for said payments were executed by said Koehr; and that said note was surrendered to said claimants.
It was further alleged that subsequent to April 1, 1944, Amelia B. Gaebler, acting by and through her agent Edward L. Kuhs, advised claimants that her agent Joseph F. Koehr had failed and refused to turn over to her the amounts paid by claimants on said note, and that they thereupon made a second payment to said Amelia B. Gaebler of the principal and interest due on said note. It was then alleged that the second payment was made under a mistake of fact and without consideration. The prayer was that said claim be allowed in the sum of $4,800, and costs.
On December 29, 1949, Irma G. Hill, the executrix of the estate of Amelia B. Gaebler, deceased, filed in the Probate Court her motion to dismiss said claim. The grounds of said motion were that the Probate Court was without jurisdiction to hear and determine said claim, because (1) a suit, based upon the same facts, was filed in the Circuit Court of the City of St. Louis prior to the filing of said claim in the Probate Court; and (2) because it appears on the face of said claim and said amended petition that claimants were seeking to have set aside certain alleged payments on certain notes because of alleged mistake of fact and fraud practiced upon them, which grounds of recovery could only be tried in a court of equity. It was alleged in said motion that said suit was originally filed against Joseph F. Koehr, and that on April 19, 1948, Amelia Gaebler was, by an amended petition, made a party defendant.
Attached to said motion, as an exhibit, was a copy of the amended petition in cause No. 3967-D of the Circuit Court of the City of St. Louis, entitled 'Wilbur G. Haefner and Neva Haefner, his wife, plaintiffs, v. Joseph F. Koehr and Amelia B. Gaebler.' By said petition it was alleged that on April 1, 1941, plaintiffs executed and delivered to defendant Amelia B. Gaebler, through her agent Joseph F. Koehr, their note for $4,800, payable April 1, 1944, with interest at the rate of five per cent. per annum, and that said note was secured by a deed of trust on plaintiffs' real estate located at 8544 North Broadway in the City of St. Louis; that it was thereafter agreed by said parties that the interest and principal payments on said note could and should be made through defendant Joseph F. Koehr; that thereafter and prior to April 1, 1944, the defendant Amelia Gaebler permitted defendant Joseph F. Koehr to act as her agent in the collection and surrender of said notes, and placed same in his possession with full authority to collect the principal and interest due on said notes; that plaintiffs paid to the said Amelia Gaebler the full amount due, together with interest, and upon payment of each interest note same was surrendered to plaintiffs by the defendant Joseph Koehr.
It was further alleged that subsequent to April 1, 1944, defendant Amelia Gaebler advised plaintiffs that defendant Koehr had failed and refused to pay to her the principal amount, $4,800, paid by plaintiffs, and at said time falsely represented that defendant Joseph F. Koehr had not been authorized to act for her in the collection of said notes, and stated that as far as she was concerned defendant Joseph F. Koehr was agent for plaintiffs; that said defendant Amelia Gaebler, after making said false representations, threatened to foreclose the mortgage above mentioned, and that by reason of said false representations and threats, plaintiffs were induced to execute an extension note by the terms of which they agreed to again pay the principal sum which had been collected by the defendant Amelia Gaebler by and through her agent, Joseph F. Koehr.
It was further alleged that thereafter, and while acting under said false representations, plaintiffs instituted a suit against defendant Joseph F. Koehr to recover the sums which had been paid to him for defendant Amelia Gaebler; that by taking the depositions of Amelia Gaebler and her agent, Edward L. Kuhs, plaintiffs discovered that said Amelia Gaebler had falsely represented that Joseph F. Koehr was not acting as her agent in the collection of said interest notes and principal note; and that said depositions were taken on the 17th day of June, 1947, and on March 4, 1948.
It was further alleged that there was no consideration for the second payment of $4,800, and that same was made under a mistake of fact induced by the fraudulent representations of the defendant Amelia Gaebler, and that in equity and in good conscience said defendant should not be permitted to retain said funds.
The prayer of the petition was for judgment against both defendants in the sum of $4,800, together with costs.
On May 9, 1950, the Probate Court entered the following order:
'Now on this 9th day of May, 1950, and during the May Term, 1950, of this court, after duly considering the law and the evidence heretofore submitted to the court on the 11th day of November, 1949, on the motion of the executrix to dismiss the claim of Wilbur G. Haefner and Neva Haefner, his wife, the court finds that said claimants have a cause of action pending in the Circuit Court of the City of St. Louis based on this claim and by reason thereof, the court lacks jurisdiction to entertain the claim.
'It is therefore ordered, adjudged and decreed that the claim be and the same is hereby dismissed for lack of jurisdiction, at the cost of the claimants.'
From the above order of dismissal the claimants, on June 20, 1950, appealed to the Circuit Court of St. Louis County. When the case reached the Circuit Court the executrix again moved to dismiss said cause. The grounds of said motion were identical with those relied on the motion to dismiss theretofore filed in the Probate Court. This motion was by the court sustained, on the ground 'that the St. Louis Circuit Court first obtained and has exclusive jurisdiction over the subject matter of the litigation.' Thereafter, in due time, claimants appealed from the judgment of dismissal.
Appellants assign as error the action of the trial court in sustaining the motion to dismiss filed by the executrix. Respondent contends that we are precluded from considering said assignment for the reason that appellants failed to file a motion for new trial after the trial court made its finding. There is no merit to this contention. The motion to dismiss raised a question of the court's jurisdiction over the subject matter, and the issue thus raised was tried to the court. Under such circumstances, no motion for new trial was necessary to preserve the court's ruling for review. See Sections 512.160 and 510.310, RSMo 1949, V.A.M.S.; Supreme Court Rule 3.23; and Crispon v. St. Louis Public Service Co., 361 Mo. 866, 237 S.W.2d 153.
It is a well established rule that when a court of competent jurisdiction becomes possessed of a cause, its authority continues, subject only to the authority of a superior court, until the matter is finally and completely disposed of; and no court of concurrent jurisdiction may interfere with its action. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 15 L.R.A.,N.S., 963; Julian v. Commercial Assur. Co., 220 Mo.App. 115, 279 S.W. 740; 21 C.J.S., Courts, Sec. 492, p. 745.
This rule rests upon comity and the necessity of securing proper and orderly administration of justice to prevent vexation, oppression, harassment and unnecessary litigation. Any other rule would result in a multiplicity of suits and create unseemly, expensive and dangerous conflicts in the securing and execution of judgments. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 15 L.R.A.,N.S., 963; Myers v. Superior Court, 75 Cal.App.2d 925, 172 P.2d 84; Simmons v. Superior Court, 96 Cal.App.2d 119, 214 P.2d 844, 19 A.L.R.2d 288; Schaefer v. Milner, 156 Kan. 768, 137 P.2d 156; Gay, Hardie & Co. v. Brierfield Coal & Iron Co., 94 Ala. 303, 11 So. 353; Kusick v. Kusick, 243 Wis. 135, 9 N.W.2d 607; Ex parte Burch, 236 Ala. 662, 184 So. 694; Morris v. McElroy, 23 Ala.App. 96, 122 So. 606; State ex rel. Cook v. Madison Circuit Court, 193 Ind. 20, 138 N.E. 762; First M. E. Church v. Hull, 225 Iowa 306, 280 N.W. 531; Maclean v. Speed, Circuit Judge for Wayne County, 52 Mich. 257, 18 N.W. 396; 15 C.J., Courts, sec. 583, p. 1136; 21 C.J.S., Courts, Sec. 492, p. 747; 14 Am.Jur., Courts, sec. 243, p. 435.
In applying the rule above mentioned the proper test is: (1) whether there is a prior...
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