In re Estate of Campbell
| Citation | 202 S.W. 1114,274 Mo. 343 |
| Parties | In Matter of Estate of JAMES CAMPBELL; JOHN S. LEAHY, Administrator Pendente Lite, Appellant, v. FLORENCE A. CAMPBELL et al; MERCANTILE TRUST COMPANY, Executor |
| Decision Date | 27 April 1918 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.
Appeal dismissed.
Wm. C Marshall, Major & Revelle, Chas. P. Williams and Geo. B Webster for appellant.
(1) The affidavits for appeal below, filed in the probate court were if anything, only from the order of the probate court suspending the executor. (2) The right to an appeal is statutory. State ex rel. v. Woodson, 128 Mo. 514; State ex rel. v. Talty, 139 Mo. 379; Kansas City v. Railroad, 189 Mo. 261; Star Bottling Co. v Exposition Co., 240 Mo. 634. The fourth clause of Sec. 3956, R. S. 1909, was relied upon, to a large extent, below. This cannot, consistently with our decisions, be given an unrestrained meaning. Baker v. Runkle's Executor, 41 Mo. 394; State v. Hoster, 61 Mo. 544; In re Duty's Estate, 27 Mo. 43; Baptist Church v. Robberson, 71 Mo. 348; In re Crouse, 140 Mo.App. 545; State ex rel. v. Fowler, 108 Mo. 465; In re Flick, 212 Mo. 275, 136 Mo.App. 164; State v. Reddish, 148 Mo.App. 721; State v. Holtcamp, 185 S.W. 203; Marshall v. Shoemaker, 164 Mo.App. 429; Looney v. Browning, 112 Mo.App. 195; Sheridan v. Fleming, 93 Mo. 321; Railroad v. St. Louis, 92 Mo. 160; Aldridge v. Spears, 101 Mo. 400; Haynes v. County Court, 135 Mo.App. 108; Scott County v. Leftwich, 145 Mo. 26; State v. Fraker, 166 Mo. 140. It is plain from the foregoing, that the fourth clause of Section 3956 must be limited by construction. (3) Addressing ourselves to its construction, it is plain in the first place that it must be limited to such orders and judgments as are final in their nature. (a) Upon general principles. Baker v. Runkle, 41 Mo. 394; Woerner on Administrations (2 Ed.), sec. 545; 2 Ency. P. & Pr. 52; Loveland on Appellate Jurisdiction, sec. 39. (b) By the general statutory policy of this State. R. S. 1909, secs, 289, 395, 463, 473, 2038, 2054, 2055, 2090, 2380, 4091, 4118, 4142, 4198, 4207, 4255, 4289, 4297, 4315, 5292, 5293. (c) By the express interpretation of this very statute. Haynes v. County Court, 135 Mo.App. 113; Coleman v. Farrar, 112 Mo. 72; Scott County v. Leftwich, 145 Mo. 31; In re Crouse, 140 Mo.App. 551; Aultman v. Seiberling, 31 Ohio St. 201. It thus adds nothing to the last clause of Sec. 289, R. S. 1909. (4) It is further plain that Section 289 is a part of a special code or scheme of laws. Expressio unius exclusio alterius est. In re Duty's Estate, 27 Mo. 43; First Church v. Robberson, 71 Mo. 340; Aldridge v. Spears, 101 Mo. 406; In re Crouse, 140 Mo.App. 555; In re Brinkwirth's Estate, 186 S.W. 1050; State ex rel. v. Grover, 108 Mo. 469; Marshall v. Estate of Shoemaker, 164 Mo.App. 437; Morris v. Morris, 128 Mo.App. 676; In re Estate of Rooney, 163 Mo.App. 389. (5) Section 3956 does not undertake to confer jurisdiction, but to prescribe the court to which appeals shall go when expressly provided for. In re Estate of Rooney, 163 Mo.App. 389; Morris v. Morris, 128 Mo.App. 676. (6) An appeal will not lie, under the fifteenth clause of Section 289, from the order of suspension, which is the act of the law. Wherever a status is created by the law, it is clearly contrary to the policy of the law to allow an appeal. (7) The effect being the same, the reasoning is the same with respect to an order appointing the administrator pendente lite. That order is not final, any more than, or as much as, an order appointing an interlocutory receiver in chancery proceedings. Greeley v. Railway, 123 Mo. 157; Bank v. Whitney, 121 U.S. 284. (8) The proceeding to appoint an administrator pendente lite is not only ex parte but it is not a case wherein a final decision can be rendered within the meaning of Clause 15, Sec. 289, R. S. 1909. Haynes v. County Court, 135 Mo.App. 108; Barnett v. County Court, 111 Mo.App. 693; State ex rel. v. Guinotte, 156 Mo. 519. (9) No appeal will lie, under the general language of Clause 15, Section 289, because it would nullify the adjudged purpose back of Section 21, which is a particular statute, designed to secure uninterrupted administration. Rogers v. Dively, 51 Mo. 196. (10) Such an appeal will not lie, under the fifteenth clause, because it would nullify the adjudged purpose of section 21, to put the estate into the hands of a neutral and disinterested person. State ex rel. v. Imel, 243 Mo. 186; Hawkins v. Cunningham, 67 Mo. 415. (11) No appeal will lie from an order appointing an administrator pendente lite over property remaining in the custody of the probate court, because it is not contemplated that the circuit court should substitute its judgment and discretion in appointing a custodian for property not in its custody. Barnett v. County Court, 111 Mo.App. 693. (12) The rulings in this State plainly indicate that no appeal will lie. State ex rel. v. Moehlenkamp, 133 Mo. 137; Woerner, Law of Administration, sec. 545, p. 1198; State ex rel. v. Imel, 243 Mo. 186; State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Holtcamp, 267 Mo. 420; Flick v. Schenk, 212 Mo. 275; In re Flick, 136 Mo.App. 164; State ex rel. v. Reddish, 148 Mo.App. 721; Marshall v. Estate of Shoemaker, 164 Mo.App. 429. (13) There is no appeal under clause 9 of Section 289. To suspend is not the same as to revoke. State ex rel. v. Moehlenkamp, 133 Mo. 137; State ex rel. v. Moehlenkamp, 133 Mo. 137. State ex rel. v. Imel, 243 Mo. 185; Robards v. Lamb, 89 Mo. 303; In re Ellmaker's Estate, 4 Watts (Pa.), 34-36; Ex parte Worthington, 54 Md. 361; Cole v. Woodin, 18 N. J. 20; Marshall v. Estate of Shoemaker, 164 Mo.App. 429; State v. Melvin, 166 Mo. 565. (14) A person does not have to be a technical party in order to be entitled to take an appeal; it is sufficient that the judgment injuriously affects his rights -- that he is "aggrieved" thereby. In re Switzer, 201 Mo. 66; In re Whicker, 187 Mo.App. 102; Thomas v. Elliott, 215 Mo. 603; State ex rel. v. Shelton, 238 Mo. 297. (15) In the present proceeding there were no technical parties and that the matter was not inter partes at all. The proceeding in the probate court was the appointment of a temporary administrator to conduct and administer property under the control of the court, which property was without any qualified or authorized executor or administrator at all. To that proceeding there were no parties, any more than there can be said to be parties to a proceeding to probate a will or to appoint a regular executor or administrator. All are in the nature of proceedings in rem, binding upon the world until reversed or set aside in a direct proceeding authorized by law. They result in the establishment of a status binding upon creditors, debtors, heirs and devisees alike, until so reversed or set aside. Any other holding would be disastrous indeed. Weorner on Administration (2 Ed.), sec. 263, sec. 227; Schouler on Wills and Administrations (5 Ed.), sec. 1120-A; Woerner and Wislizenus on the Law of Decedent's Estates, sec. 349; Quidort v. Pergeauz, 18 N.J.Eq. 477. Such being the nature of the proceeding in the probate court, such equally must have been its nature upon appeal to the circuit court. If the appellant was aggrieved by the judgment to which he, with all the world, was privy, he certainly had a right of appeal. (16) Was the appellant aggrieved by the judgment below? John S. Leahy was appointed by the probate court administrator pendente lite of the estate of James Campbell, deceased. He qualified and gave bond as required by the order of appointment. That completed appointment invested Leahy with an official capacity and with official functions with respect to that estate. It was his official duty and his official privilege to exercise his functions in the administration of that estate. Let us assume now that the law of Missouri permitted no appeal from such an appointment. That was appellant's contention below, and that is his contention here. If that contention is well founded, any attempt to prevent the exercise by him of his official functions and duties, or to nullify his official character (upon the maintenance and assertion of which the performance of such official functions and duties depended) by any person, or by any method, unauthorized by law (whether by pretended appeal or otherwise) should have been resisted by him in his official capacity. If this is not true, then no officer of this court should resist any attempt to strip him of the official functions and duties with which he was here invested, but such officer should accept the decree and findings of such courts without any attempt at defense, without any effort to maintain his rights, and should at once bow in utter and complete subservience to their unwarranted fiat. If no appeal did lie, then every step in connection with that appeal was coram non judice and void. Nevertheless, by the judgment of the circuit court, the appellant was effectively prevented as such temporary administrator from the performance of his duties -- from the administration of the property composing the estate -- to which, in his official capacity, he was rightfully entitled. He was further prevented by such unauthorized action of the circuit court from earning as such official the fees and commissions which would have been allowed to the temporary administrator for his services. To say, therefore, that he was not a party aggrieved or that because he was not a technical party to this proceeding, and, therefore, could not appeal, would be in conflict with the fundamental doctrine of our whole system of appellate procedure. Furthermore, Leahy, administrator pendente lite, appeared as a party to the proceeding in the circuit court without...
To continue reading
Request your trial