In re Moore's Guardianship, 25646.

• Citation: 148 S.W.2d 116
• Decision Date: 04 March 1941
• Docket Number: No. 25646.,25646.
• Court: Court of Appeal of Missouri (US)
• Parties: In re MOORE'S GUARDIANSHIP.

148 S.W.2d 116

In re MOORE'S GUARDIANSHIP.

No. 25646.

St. Louis Court of Appeals. Missouri.

March 4, 1941.

Rehearing Denied March 18, 1941.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be reported in State Reports."

Proceeding in the matter of the guardianship of Fountain S. Moore, non compos mentis, Martha A. Chappel, guardian, wherein the City of St. Louis, a municipal corporation, filed in the probate court of the City of St. Louis a so-called petition for appropriation for support of ward. The petition was sustained by the probate court and Martha A. Chappel, guardian, appealed to the Circuit Court after her motion to set aside the probate court's order and judgment sustaining the petition was denied. From a judgment of the Circuit Court sustaining the guardian's motion to dismiss the proceeding, the City of St. Louis, a municipal corporation, appealed and a motion was made by Martha A. Chappel, guardian, to strike from appellant's abstract the whole thereof except the record proper.

Motion overruled, and judgment of the Circuit Court affirmed.

Edgar H. Wayman, Harold C. Hanke, and Oliver Senti, all of St. Louis, for appellant.

N. Murry Edwards, of St. Louis, for respondent.

HUGHES, Presiding Judge.

This case originated in the Probate Court of the City of St. Louis, on the 31st day of August 1930, by the filing of a paper denominated "Petition of the City of St. Louis, a Municipal Corporation, for appropriation for support of Ward," which is as follows:

"Now comes the City of St. Louis, a municipal corporation, by and through Harold C. Hanke, its agent and attorney, and respectfully states to the Court as follows:

"That the above-entitled ward, Fountain S. Moore, is now and has been since October 30, 1933, a patient at the City Sanitarium, owned and maintained by the City of St. Louis, Missouri; that during the period from October 30, 1933, to July 31, 1938, nothing has been paid for the maintenance and support of said Fountain S. Moore; that there is now due the City of St. Louis, a municipal corporation, for said maintenance and support at the rate of Twenty Dollars ($20.00) per month, Eleven Hundred and Forty-One Dollars and Twenty-Nine Cents ($1,141.29); that said charge is a reasonable one; that there was an implied contract on the part of the guardian to pay for the maintenance and support of her ward; that there are assets in said estate far in excess of said sum; that said estate will continue to appreciate at the rate of Sixty Dollars ($60.00) per month.

"Wherefore, petitioner prays an order of this Court authorizing and directing Martha A. Chappel, successor guardian of the person and estate of Fountain S. Moore, to pay the City of St. Louis Eleven Hundred and Forty-One Dollars and Twenty-Nine Cents ($1,141.29) for the maintenance of her ward from October 30, 1933, to July 31, 1938, plus interest, and to pay for said patient's maintenance at the rate of Twenty Dollars ($20.00) per month plus interest for as long as he remains at the City Sanitarium, or until further order of this Court.

                               "The City of St. Louis
                                 a Municipal Corporation
                               "By Harold C. Hanke
                                    Agent and Attorney."
                

On the 31st day of March, 1939, the record of the probate court shows that the court having heard and duly considered the petition and evidence adduced, sustained the petition, and ordered that the City of St. Louis be allowed the sum of $1,141.29 for past support and maintenance of the said ward, and that the court appropriates the sum of $20 per month out of said ward's estate for his support and maintenance beginning the 1st day of August, 1938.

On the 6th day of April, 1939, the guardian filed a motion in the probate court to set aside its order and judgment made on March 31, 1939, for the reason that the probate court had no jurisdiction or authority to make and enter it. This motion was denied by the probate court on the 10th day of April, 1939, and thereafter the guardian perfected a timely appeal to the circuit court.

On the 27th day of November, 1939, the cause was heard in the circuit court, a jury being waived, and with the cause was heard and submitted a motion of the guardian to dismiss the proceeding, which motion is as follows:

"Comes now Mattie Chappel, guardian of the estate of Fountain S. Moore, non compos mentis, and moves the Court to dismiss this proceeding and for grounds of said motion, your guardian states:

"1. That this is not a claim nor a suit against this estate and seeks to enter an order compelling the guardian of the estate of Fountain S. Moore to pay the City of St. Louis certain funds without the same being allowed as a claim or without a judgment being obtained in a regular suit instituted for that purpose.

"2. Said proceeding is illegal and improper and seeks to take and confiscate the property of Fountain S. Moore and deprive him of his property without due process of law contrary to the provisions of Article 2, Section 30, of the Constitution of the State of Missouri, Mo.St.Ann. and Section 1, Amendment 14, of the Constitution of the United States.

"3. Said proceeding is illegal and improper and denies to Fountain S. Moore equal protection of the laws contrary to the provisions of Amendment 14, Section 1, of the Constitution of the United States.

"4. Said proceeding is illegal and improper and contrary to the statutes of the United States in that it seeks to take and convert funds of this ward derived from compensation payments made by the United States government, which funds are rendered exempt by said statutes.

"5. The so-called petition for the City of St. Louis for appropriation fails to state facts sufficient to warrant the relief prayed for therein."

Thereafter, on the 5th day of February, 1940, the circuit court ordered that the submission of the cause be set aside, and that the guardian's motion to dismiss the proceeding be sustained. The trial judge filed a memorandum giving the reasons for dismissing the proceeding which is as follows:

"A motion to dismiss filed before submission was taken with the case, ruling thereon being deferred.

"This motion attacks the procedure to the effect that there is no provision in law warranting an order by the Probate Court directed to a curator of a person n.c.m., commanding such curator to pay a demand presented to said Court by summary petition, bottomed on matters arising subsequent to the appointment of the guardian.

"I have concluded the motion should be sustained. The guardian makes no petition here for appropriation for care and support, or for proper credits. I find no provision in law warranting the present method. The Probate Court is one of limited jurisdiction and its powers are not to be extended by implication. Absent statutory powers to make such an order as this, it has no such powers. I refrain from any finding or opinion on the merits, since in my opinion I have no jurisdiction of the cause other than to dismiss it.

"The order taking the cause as heard and submitted is set aside. The cause is reinstated on the docket; the motion to dismiss is sustained and the cause is ordered dismissed and said order is to be certified to the St. Louis Probate Court."

The petitioner, after the overruling of motion for new trial, appeals to this Court.

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