In re Sheldon's Estate, 39460.

• Decision Date: 02 July 1945
• Docket Number: No. 39460.,39460.
• Citation: 189 S.W.2d 235
• Parties: IN RE ESTATE OF JENNIE MAUDE SHELDON, Deceased. LENA MAY HAMMONS FAKES by MAURICE P. PHILLIPS, Her Guardian, Appellant, v. MAY HAMMONS, Executrix of the Estate of JENNIE MAUDE SHELDON, Deceased.
• Court: Missouri Supreme Court

189 S.W.2d 235 IN RE ESTATE OF JENNIE MAUDE SHELDON, Deceased. LENA MAY HAMMONS FAKES by MAURICE P. PHILLIPS, Her Guardian, Appellant,
v.
MAY HAMMONS, Executrix of the Estate of JENNIE MAUDE SHELDON, Deceased. No. 39460. Supreme Court of Missouri. Court en Banc, July 2, 1945. Rehearing Denied, September 4, 1945.

Appeal from Randolph Circuit Court. — Hon. Austin Walden, Special Judge.

[189 S.W.2d 236]

AFFIRMED.

Maurice P. Phillips for appellant.

(1) A motion attacking the validity of a judgment after the term of rendition may combine in that motion an assault upon the judgment resting on matter that the court will judicially notice or which calls for the production of extrinsic evidence. Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W. (2d) 103. (2) A motion to strike a motion should not be entertained or permitted to be filed because the relief sought by the motion to strike may be granted under the motion at which it is directed. Seibert v. Harden, 319 Mo. 1105, 8 S.W. (2d) 905. (3) If sustained, the ruling on the motion to strike the motion is, in effect, an overruling of the motion to which it is directed. Case cited under (2). (4) Refusing to grant a hearing on the motion attacking the judgment, the court could not know whether there was any merit in it, for the motion to strike would limit the hearing conducted by the court to the issue of whether or not the motion attacking the judgment after the term of rendition was timely filed and would restrict that issue under the motion to strike to whether it was filed at the term at which the judgment was entered, and this action constituted prejudicial and reversible error. Audsley v. Hale, 303 Mo. 451, 261 S.W. 117; Crabtree v. Aetna Life Ins. Co., 341 Mo. 1173, 111 S.W. (2d) 103. (5) The residence of an insane ward is the primary jurisdictional fact upon which the validity of an adjudication of a person to be non compos mentis is predicated and is the determining fact that excludes any interference with the court's control of the property and person of the insane ward by any other probate court in Missouri. State ex rel. Townsend v. Mueller, 330 Mo. 608, 51 S.W. (2d) 8; State ex rel. Terry v. Holtkamp, 330 Mo. 608, 51 S.W. (2d) 13; State ex rel. Bartlett v. Littrell, 325 Mo. 35, 26 S.W. (2d) 76. (6) The adjudication of Jennie Maude Sheldon, N.C.M., and the placing of her person and property under the jurisdiction, custody and control, by such adjudication, of the Probate Court of the City of St. Louis is binding upon all her privies whether in contract, estate, blood, or in law. State ex rel. Terry v. Holtkamp, 330 Mo. 608, 51 S.W. (2d) 13. (7) The statutes of Missouri, Sections 460, 474 and 497, R.S. 1939, place the ward and the guardian under the supervision of the probate court making the adjudication and the appointment, and grant that court alone the power to fix the place of abode, but not the residence, of the ward. (8) An adjudication non compos mentis and the placing of a ward and her property in the custody of the court through a guardian is an adversary proceedings and a court of some other county, in which the ward may happen to be at the time, cannot entertain proceedings which would in any wise impair the judgment of the probate court taking custody of the person and estate of said ward. Hamilton v. Henderson, 232 Mo. App. 1234, 117 S.W. (2d) 379; McCabe v. Lewis, 76 Mo. 296. (9) The appointment of an administrator is an ex parte proceedings and is under the supervision of the court making the appointment until the order of the court discharging the personal representative of the deceased (or other final order) is regularly made of record by said court. Ross v. Pitcairn, 179 S.W. (2d) 35. (10) Upon the death of a ward, Section 494, R.S. 1939, provides that the guardian shall make a final settlement with the probate court having jurisdiction and thereupon turn over the property of the ward to the representatives of the deceased ward. This recognizes that the property is still in the custody of the court and under its supervision, for in connection with the final settlement and before it is turned over to the deceased's personal representative, the court must determine what property it is the guardian has on hand as the agent of the court and a representative of the ward in order to enter a judgment approving the final settlement and discharging the guardian. The res is therefore still in the court's possession after the death of the ward. State ex rel. Gott v. Fidelity & Deposit Co., 317 Mo. 1078, 298 S.W. 83.

Aubrey R. Hammett, Jr., and Lawrence Holman for respondents.

The trial court properly sustained the motion to strike, and its order and judgment in so doing should be affirmed. (1) The use of the motion to strike is proper in order to dispose of a pleading filed out of time, or which states no cause of action or where under the law, the relief sought cannot be granted. Byers v. Jacobs, 164 Mo. 141, 64 S.W. 156; State ex rel. v. Ellison, 181 S.W. 998, 266 Mo. 423; Hodges v. Brooks, 122 S.W. (2d) 383, 232 Mo. App. 667; Campbell v. Trust Co., 124 S.W. (2d) 1068, 343 Mo. 1041. (2) Appellant's motion was improper because it attempted to collaterally attack final judgments. Probate Courts are considered as courts of superior, though limited jurisdiction, and their judgments are entitled to the same liberal presumptions and intendments to sustain their proceedings and jurisdiction as are indulged in behalf of courts of general jurisdiction. Rottman v. Schmucker, 94 Mo. 139, 7 S.W. 117; In re Estate of Davison, 100 Mo. App. 263, 73 S.W. 373. (3) A judgment of the probate court, regular on its face is not subject to collateral attack. In re Estate of Davison, supra; Thompson v. Railroad Co., 27 S.W. (2d) 58, 224 Mo. App. 415; Smith v. Young, 136 Mo. App. 65, 117 S.W. 628; Linder v. Burns, 243 S.W. 361; In re Greenings Estate, 89 S.W. (2d) 123, 232 Mo. App. 78. (4) A motion attacking the jurisdiction of the probate court filed at a subsequent term is a collateral, rather than a direct attack. Smith v. Young, supra. (5) It is a well settled general rule in Missouri, and every other jurisdiction that the power of a court to set aside, correct or amend a judgment regular on its face, ends with the...