In re Ford

• Decision Date: 02 May 1911
• Citation: 137 S.W. 32,157 Mo. App. 141
• Parties: In re FORD.
• Court: Missouri Court of Appeals

137 S.W. 32

157 Mo. App. 141

In re FORD.

St. Louis Court of Appeals. Missouri.

May 2, 1911.

1. APPEAL AND ERROR (§ 1091)—PRESUMPTIONS —SUFFICIENCY OF EVIDENCE.

In the absence from the abstract of the evidence in proceedings for the removal of a curator, the court on appeal from a judgment of the circuit court, affirming a judgment of removal by the probate court, must assume that the circuit court had sufficient evidence to warrant its judgment.

2. COURTS (§ 35)—COURT OF GENERAL JURISDICTION —PRESUMPTIONS.

The circuit court being a court of general jurisdiction, all presumptions must be indulged in to sustain its judgment rendered in a cause within its jurisdiction.

3. COURTS (§ 202)—PROBATE COURTS — REMOVAL OF CURATOR—PROCEEDINGS IN CIRCUIT COURT ON APPEAL.

Where proceedings begun in the probate court to remove a curator come to the circuit court on appeal, the circuit court proceeds with all the powers of a circuit court in a case originating before it, provided it acquires jurisdiction over the subject-matter.

4. COURTS (§ 202)—PROBATE COURTS—APPEAL TO CIRCUIT COURT—APPELLATE JURISDICTION.

If the probate court had no jurisdiction of the case before it, the circuit court can acquire none on appeal.

5. APPEARANCE (§§ 18, 19)—JURISDICTION ACQUIRED —PROBATE COURTS.

Where a probate court is without jurisdiction of the subject-matter, the appearance of a party cannot confer jurisdiction, but, where there is jurisdiction of the subject-matter, the appearance of the party whether properly summoned or not, or not at all, will give the court full authority to determine the cause.

6. JUDGMENT (§ 640) — CONCLUSIVENESS — PROBATE COURT.

While the probate court is one of limited jurisdiction, its judgments within the scope of that jurisdiction are as conclusive as those of other courts of record of general jurisdiction.

7. GUARDIAN AND WARD (§ 25)—REMOVAL OF CURATOR—POWER OF PROBATE COURT.

Under Const. art. 6, § 34, substantially reiterated in Rev. St. 1909, §§ 3845, 4056, providing that the probate court shall be a court of record with jurisdiction over all matters pertaining to the appointment of curators and settling their accounts, and under Rev. St. 1909, §§ 402-465, relating to guardians and curators, and providing for their removal for good cause, and authorizing any person interested to make complaint for the removal of a curator and requiring the court to compel the curator's appearance and proceed on the complaint, the probate court in the management of the estate by guardians and curators acts like a court of chancery, and it has plenary jurisdiction over them, and it may remove them on a citation issue by it commanding them to appear before the court and show cause why they should not be removed, and the fact that any person interested in the estate may make complaint does not affect the inherent power of the court to issue a citation on its own motion.

Caulfield, J., dissenting.

Appeal from Circuit Court, Clark County; Chas. D. Stewart, Judge.

Proceedings for the removal of Leonard Ford, as curator of the estate of Ruth Baker and another, minors. From a judgment of the circuit court affirming a judgment of the probate court removing the curator, he appeals. Affirmed.

C. T. Llewellyn and J. H. Talbott, for appellant. Geo. M. Callihan, Probate Judge, for respondent.

REYNOLDS, P. J.

The judge of the Probate Court of Clark County issued a citation to one Leonard Ford, as curator of the estate of Ruth and Mary Baker, minors, commanding him to appear before that court at the following February term and show cause why he should not be removed as curator of that estate, "by reason of your mismanagement of same and your failure to account in your annual settlements, as such curator, for the interest due said estate for money in your hands as such curator." This was personally served on the curator in due time. At the return term of the probate court the curator appeared and filed his return to the citation, the return being in the nature of a demurrer and answer, the demurrer alleging lack of jurisdiction over the case, the answer denying the charges set out in the citation. The probate court on hearing before it, removed the curator, whereupon he appealed to the circuit court. In that court the curator filed a demurrer assigning four grounds: First, that there was no complaint verified by affidavit filed in the probate court: second, the action of the probate court in removing the curator was had without any complaint verified by affidavit having been filed against him: third, because the curator was not and is not notified on what charge or for what cause he is or was removed as such curator: fourth, because no specific charges or cause of removal have been preferred against him and he is not notified specifically of any charge or cause for removal filed against him.

This appears to have been overruled and the cause proceeded to trial before the circuit court.

The only record of the proceedings in the circuit court which we have before us is contained in appellant's abstract, and that abstract does not set out any of the evidence. It is clearly set out in the record entries that the curator appeared by attorney and in his own proper person and the estate was represented by the probate judge of the county, and it is recited in the judgment that the circuit court having heard all the evidence in the case and argument of counsel, and being fully advised ordered and adjudged that the judgment of the probate court be in all things sustained and confirmed, and "that the appointment of said Leonard Ford as curator of the estate of Ruth and Mary Baker, minors, be revoked and such appointment is hereby revoked accordingly and said Leonard Ford removed from his trust as such curator."

A motion for new trial was filed in due time, alleging among other grounds the admission by the court of any testimony by the adversary of the curator; the admission of illegal, improper and incompetent evidence offered by the adversary; the exclusion of legal, proper and competent testimony offered by the curator; the admission and rejection of testimony against the objection of the curator made at the time; because the verdict, findings and judgment are against the law and the evidence and against the law under the evidence; because the verdict, judgment and findings should have been for the curator herein instead of against him; and because the court erred in overruling the demurrer to the record and citation and proceedings therein before the trial of the cause. A motion in arrest was also filed, attacking the jurisdiction of the court over the subject-matter of the action, alleging that there is no complaint, verified by affidavit, charging the curator with any reason or thing for his removal; no complaint verified by affidavit filed by any person in interest that the curator is not specifically charged with any thing or conduct amounting to cause for removal in a complaint duly verified by affidavit filed by a party in interest; that the citation issued by the probate court does not state facts sufficient to constitute a cause of removal or cause of action against the curator and does not sufficiently and specifically inform him with what he is charged or what charges for removal are made, and that upon the record there is manifest error in the judgment.

These motions were overruled, exception saved and appeal duly perfected by the curator to this court.

The assignments of error here are to the action of the circuit court in overruling the demurrer; that no affidavit, bill or complaint was filed in the cause; that the court was without jurisdiction to hear and determine any charge or complaint until the curator was notified of what charges were made against him; that no complaint verified by affidavit has been filed and no specific charge or cause for removal has been preferred against the curator.

The sole question therefore presented for our determination is one of power in the probate court, on this citation, to remove this curator. If it had that power, all inquiries by us into the question of the correctness of its action, and of the action of the circuit court confirmatory thereof is precluded by the finding and judgment of that court, by reason of the absence from the abstract of the evidence. We are bound to assume that the circuit court had before it evidence warranting its finding and judgment. We are advised by the record before us of the issue of and recitals in the citation; of the fact that the curator was duly served with the citation; that he appeared in obedience to the citation, both in the probate court and afterwards on appeal in the circuit court; that he pleaded to it; that he went to trial upon the allegations contained in the citation; that witnesses were produced by both parties and were heard in behalf of appellant; that at the conclusion of the hearing the trial court found that the charges made in the citation were sustained; that the circuit court thereupon entered up a judgment sustaining and confirming the finding of the probate court and revoked the appointment of the curator. As the circuit court is a court of general jurisdiction, all presumptions are to be indulged in to sustain its judgment, arrived at in a cause within its jurisdiction. When this cause came to it on appeal from the probate court, it proceeded thereon with all the powers of a circuit court in a case before it. In a sense the circuit court is not an appellate court in these cases of appeals from the probate court. While the case goes to the circuit court from the probate court on appeal, and while the circuit court in such appeal has no jurisdiction over the subject-matter of the cause appealed save that which the probate court itself had, when the case reaches the circuit court, it proceeds in it de novo, as a cause within its own jurisdiction; and its proceedings and its judgments are as conclusive as...