Greene Cnty. v. Rose

• Decision Date: 31 July 1866
• Parties: IN THE MATTER OF GREENE COUNTY, Defendant in Error, v. KINDRED ROSE, Plaintiff in Error.
• Court: Missouri Supreme Court

38 Mo. 390

IN THE MATTER OF GREENE COUNTY, Defendant in Error,

v.KINDRED ROSE, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1866.

Error to Greene Probate and Common Pleas.

E. B. Ewing, for plaintiff in error.

I. The court had no power or right to impose a fine at all. The penalty for refusing to make settlement as curator, after citation, is imprisonment, and this only after a rule to show cause--R. C. 1855, p. 828, tit. “Guardians and Curators.” There could be no punishment for contempt, by imprisonment or fine, without a rule to show cause.

II. If the court had power to punish plaintiff for disobedience of the citation as for a criminal contempt, it could do so only where such disobedience was wilful, and upon notice to the party of the accusation, and opportunity to make his defence; and if guilty, the fine can in no case exceed fifty dollars--R. C. 1855, p. 542, §§ 65-7.

III. The revocation of the appointment, like the imposition of the fine, was without authority and illegal. R. C. 1855, p. 830, § 39; Id. p. 121, § 49.

IV. A writ of error lies directly to this court from the Probate and Common Pleas Court of Greene county--Local Acts 1855, pp. 58-9, § 16.

WAGNER, Judge, delivered the opinion of the court.

The Probate and Common Pleas Court of Greene County issued a notice to Kindred Rose, who was curator of the estate of Richard F. Rose, to appear and make settlement; he failed to comply, and the court imposed on him a fine of one hundred dollars for contempt, and issued execution therefor. Afterwards he appeared and moved the court to set aside the judgment and stay the execution, which motion was by the court overruled, and he sued out his writ of error. The court clearly exceeded its powers, and its judgment must be reversed.

The statute in regard to guardians and curators provides that if they refuse or neglect to make settlements as required by law, they shall be attached and imprisoned until they make such settlements, the court first making a rule on them, respectively, to show cause why they should not be proceeded against R. C. 1855, p. 828, § 31. This statute points out a sufficient remedy, and it would seem the only remedy, against guardians and curators for a neglect to conform to the law, and promptly make their settlements. But, admitting that the party was in contempt, still the court went beyond its jurisdiction in assessing its fine. A court of record has power to punish, as for a criminal contempt, either by fine or...