In re Breck

• Citation: 158 S.W. 843
• Parties: In re BRECK et al. TEBBETTS v. RICKART et al.
• Decision Date: 28 June 1913
• Court: United States State Supreme Court of Missouri

158 S.W. 843

In re BRECK et al. TEBBETTS v. RICKART et al.

Supreme Court of Missouri.

June 28, 1913.

Rehearing Denied July 10, 1913.

1. CERTIORARI (§ 51)—RETURN—OBLIGATION TO MAKE.

In response to a writ of certiorari, the duty of the court and clerk to which the writ is addressed is confined to sending up the record called for by the writ, the legality of which will be determined by the Supreme Court.

2. JUDGMENT (§ 950)—RES JUDICATA—PLEADING—NECESSITY.

A party who has no opportunity to plead the defense of res judicata may give it in evidence under the general issue.

3. HABEAS CORPUS (§ 79) — RETURN — CONCLUSIVENESS.

The return to the writ of habeas corpus must be taken as true, regardless of the allegations of the petition therefor, unless, as authorized by Rev. St. 1909, § 2468, the averments of the return are traversed or denied by the reply, or a pleading in the nature of confession and avoidance pleads new facts to avoid the effect of the matter averred in the return, and when the averments of the return are not denied or contradicted, the issue is one of law, which must be tried on the case made.

4. HABEAS CORPUS (§ 85)—RETURN—ISSUES.

When an issue is made by a denial, or traverse by reply, to the return to the writ of habeas corpus, the issue must be adjudged and determined by evidence on a trial or hearing had.

5. HABEAS CORPUS (§ 85)—RETURN—ISSUES —BURDEN OF PROOF.

A petitioner in habeas corpus for the custody of minor children, who in his reply to the return, relying on a former adjudication, denies the fact of former adjudication, and denies that the situation of the parties has not changed since the alleged adjudication, and who avers that the matters adjudicated are not the same matters presented by the petition for adjudication, has the burden of proof; and, in the absence of any proof, the court by an inspection of the records will determine the facts.

6. HABEAS CORPUS (§ 120) — APPLICATION FOR DISCHARGE FROM CUSTODY—RES JUDICATA.

One deprived of his liberty may, by writ of habeas corpus, apply for his discharge, notwithstanding denial of prior applications, but the successive applications must not, as provided by Rev. St. 1909, § 2442, be made to courts of inferior jurisdiction.

7. HABEAS CORPUS (§ 117) — APPLICATION FOR DISCHARGE FROM CUSTODY—RES JUDICATA.

Where the status in contest has once been adjudicated on habeas corpus, the doctrine of res judicata applies, and is conclusive until the condition of the person whose status is in question has changed.

8. JUDGMENT (§ 646) — RES JUDICATA — APPOINTMENT OF GENERAL GUARDIAN.

A decision of the circuit court on certiorari to review the action of the probate court appointing a general guardian in place of a testamentary guardian, because of the latter's failure to qualify within the statutory period, which adjudges that the probate court correctly determined the question, affirmed by the St. Louis Court of Appeals on appeal, is res judicata on habeas corpus by the testamentary guardian for the custody of the minor wards, though he as ancillary to the writ obtains a writ of certiorari to require the probate court to send up to the Supreme Court the record of its proceedings in the case.

9. COURTS (§, 204) — SUPERINTENDING CONTROL—JURISDICTION.

The circuit court has jurisdiction, under the power of superintending control over inferior courts given by Const. art. 6, § 23, to determine the legality of the action of the probate court appointing a general guardian in place of the testamentary guardian, on the ground that the latter had not qualified within the statutory time.

10. CERTIORARI (§ 5)—REMEDY—AVAILABILITY OF OTHER REMEDY.

Certiorari does not lie in ordinary cases as a substitute for an appeal or writ of error, but lies to bring up a record where no appeal or writ of error lies.

11. COURTS (§ 204)—JURISDICTION—SUPERINTENDING CONTROL.

The jurisdiction of the circuit court exercising superintending control over inferior courts, as authorized by Const. art. 6, § 23, is concurrent with the jurisdiction of the Supreme Court, empowered by section 3 to exercise a general superintending control over all inferior courts, and the mere fact that in a proper case the jurisdiction of the Supreme Court may be appellate does not change the rule.

12. GUARDIAN AND WARD (§ 8)—TESTAMENTARY GUARDIAN—STATUTORY GUARDIAN—JURISDICTION OF COURT.

Under Rev. St. 1909, § 409, providing that if any testamentary guardian shall fail to notify the probate court of his acceptance of the guardianship within six months after the probate of the will, the court may appoint a guardian, the probate court may appoint a statutory guardian, where the testamentary guardian fails to notify the probate court of his acceptance within six months after probate of the will, though he qualified as executor, and assumed the duties of guardian for some years, but at no time notified the court of his acceptance.

Lamm, C. J., and Graves and Woodson, JJ., dissenting in part.

In Banc. Petitions in habeas corpus and certiorari by Lewis B. Tebbetts against Rebecca Rickart and another for the custody of Letitia Todd Breck and another, minors. Writ of habeas corpus quashed.

This is an original proceeding in habeas corpus by virtue of which the petitioner, Lewis B. Tebbetts, is seeking to obtain from respondents the custody of Letitia Todd Breck and Barbara Breck, who are minors, aged 13 and 12 years, respectively.

Respondents are husband and wife. They base their right to the custody of the said Letitia and Barbara (hereafter for the sake of brevity called the "Breck children") upon the fact that they were on the 11th day of March, 1912, appointed by the probate court of the city of St. Louis guardian of the persons and curator of the estates, respectively, of said minors. Both parents of the Breck children are dead. The last survivor of these parents, Ellen M. Breck, their mother, died on the 15th day of December, 1905, testate providing in her will as to her children as follows: "2nd. I nominate and appoint my father, L. B. Tebbetts, guardian of my said children, and hereby confer upon him all the rights, powers and authority, which a testamentary guardian is entitled to exercise under the laws of the state of Missouri. Should he fail to qualify and act as such guardian; or should he, for any cause, cease to act as such guardian, after qualifying as such, I nominate and appoint my brother-in-law, Arthur P. De Camp, guardian of my said children." Petitioner Tebbetts, nominated in the will as testamentary guardian, is the grandfather of the Breck children. He is also the father of Rebecca Rickart, and this action is ergo, of that most regrettable genus, family fight.

By the will of Ellen M. Breck, petitioner Tebbetts and one Arthur P. De Camp, the brother-in-law of decedent, were made executors thereof without bond. She also devised to them as trustees all of her property, to be held by them in trust for her three children. The will was duly probated by Tebbetts and De Camp, and they on the 16th day of January, 1906, duly qualified as executors thereof, and there was issued to them by the probate court letters testamentary. The estate was administered to a final settlement, which was made on December 6, 1910, and, being approved, Tebbetts and De Camp were as executors ordered to pay over to themselves as trustees the balance ascertained to be due the estate, which they did, and were discharged as executors. This final settlement, which was approved by the probate court, contained, among other items, pertinent or otherwise, this item of credit, to wit: "Oct. 13, 1908—By cash disbursed from time to time to Lewis B. Tebbetts and Arthur P. De Camp, trustees under the will of Ellen M. Breck, deceased, for part of the proper education, support and maintenance of the minor beneficiaries, Lewis Tebbetts Breck, Letitia Breck and Barbara Breck, since Dec. 15, 1905, the date of the death of the deceased, $6,642.65."

Petitioner Tebbetts after the death of the mother of the three Breck children, took the latter immediately into his home, and housed them, fed, clothed them, and schooled them till they were taken from his custody by virtue of a writ of habeas corpus issued by one of the judges of the circuit court of the city of St. Louis. But Tebbetts did not, for almost six years after the death of the mother of the Breck children, and after the probate of the will nominating him as testamentary guardian of said children, "notify the probate court of his acceptance of the guardianship," nor give bond; that is to say, not till September 6, 1911, at the hour of 12:30 p. m., at which time he filed with the probate judge in vacation a document reading thus, which he designates as an acceptance, to wit: "To the Hon. Charles W. Holtcamp, Judge of the Probate Court, City of St. Louis: The petition of the undersigned Lewis B. Tebbetts, respectfully represents that he is a resident of the city of St. Louis, aforesaid, and is the grandfather of Lewis T. Breck, aged 14 years 6 months, Letitia Breck, aged 12 years 6 months, Barbara Breck, aged 11 years 0 months, all of which minors reside in the city of St. Louis, Mo.; that said minors own no property, and that under the terms of the will of Ellen M. Breck, deceased, duly probated, he was nominated and appointed guardian of said minors. Wherefore he prays that he may be appointed guardian of the persons of said minors in accordance with said last will of Ellen M. Breck, mother of said minors, not having been adjudged unfit for the duties of guardianship of said minors, the other lawful parent of said minors being dead at the time, and the applicant hereby notifies the probate court or judge thereof in vacation of his acceptance of the guardianship. Lewis B. Tebbetts." Thirty minutes later, on the same day, respondent Lloyd H. Rickart filed his application with the said probate court, praying the court to appoint a statutory or "general...