In re Thomasson

• Decision Date: 09 September 1938
• Docket Number: No. 24428.,24428.
• Citation: 119 S.W.2d 433
• Parties: In re THOMASSON. TOWNSEND v. BOATMEN'S NAT. BANK OF ST. LOUIS.
• Court: Missouri Court of Appeals

119 S.W.2d 433

In re THOMASSON TOWNSEND v. BOATMEN'S NAT. BANK OF ST. LOUIS.

No. 24428.

St. Louis Court of Appeals. Missouri.

September 9, 1938.

Rehearing Denied September 23, 1938.

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister and James M. Douglas, Judges.

"Not to be published in State Reports."

Proceeding in the matter of Hugh W. Thomasson, alleged to be a person of unsound mind, by Elmira Townsend against the Boatmen's National Bank of St. Louis, administrator pendente lite de bonis non of the estate of Hugh W. Thomasson, deceased. From an order vacating a judgment for costs against the estate of the alleged insane person and adjudging the costs against informant, informant appeals.

Reversed and remanded with directions.

Taylor R. Young, Stephen A. Boggiano, and Cullen, Storckman & Coil, all of St. Louis, for appellant.

Charles Claflin Allen, Jr., of St. Louis, for respondent Boatmen's Nat. Bank of St. Louis.

BECKER, Judge.

This is an appeal in an insanity proceeding from an order vacating a judgment for costs against the estate of the alleged insane person and adjudging the costs against Informant in the case.

An insanity proceeding was instituted In the Matter of Hugh W. Thomasson by Elmira Townsend, Informant, in the Probate Court of the City of St. Louis, on October 6, 1931. Upon the proceedings being transferred to the circuit court Thomasson filed a plea to the jurisdiction and a plea in abatement and demanded a separate trial upon said pleas. These pleas were accordingly tried separately to a jury, the hearing lasting over ninety days, and on December 2, 1932, the jury returned a verdict finding both issues submitted to it against Thomasson.

A motion for new trial was filed on behalf of Thomasson, whereupon Informant filed a motion to strike out the motion for new trial on the grounds: "First, the verdict of the jury did not decide all the issues involved in the case, but did decide special issues only, and there is no final judgment entered at this time and the only office of a motion for new trial is to call to the attention of the court, after final judgment, matters that have occurred in the proceeding which have resulted in final judgment; second, because under the law there is no provision made warranting the filing of a motion for a new trial in a proceeding like this and at the stage which now exists in this proceeding."

On December 16, 1932, Informant's motion to strike respondent's motion for new trial was sustained and the case set down for hearing on the merits on January 17, 1933. On January 18, 1933, neither Thomasson nor his attorney having appeared, the court appointed Forest P. Tralles attorney for Thomasson "to represent him at the trial on its merits," and the case was continued to February 6, 1933, on which date the death of Hugh W. Thomasson was suggested, and the cause passed to March 13, 1933, on which date the following judgment was entered in the case by the circuit court:

"Now on this 13th day of March, 1933, come Elmira Townsend and Ella F. Bolles, and show to the Court that they have heretofore, to-wit, on the 13th day of February, 1933, been duly appointed Administratrices of the Estate of Hugh W. Thomasson by the Probate Court of the City of St. Louis, and as such administratrices, they enter the appearance of said estate and their appearances as parties to this action, waiving service of all process upon them or upon said estate, and the death of said Hugh W. Thomasson having heretofore, to-wit, on the 6th day of February, 1933, been suggested by R. Shad Bennett, and the Court now being satisfied from an exhibition of the letters of administration and other evidence, that said Hugh W. Thomasson is deceased, and that he came to his death in the County of Pulaski, State of Arkansas, on the 28th day of January, 1933, doth make in said case the following findings:

"First: That the informant Elmira Townsend, in filing the information in said cause, acted in good faith and that there was reasonable and probable cause for instituting said proceedings.

"Second: That the verdict of the jury heretofore rendered and filed in this case was supported by the greater weight of the evidence, and that said testimony tended to prove and did prove the said Hugh W. Thomasson was a resident of the City of St. Louis, and that he had never voluntarily or intentionally changed his place of residence from said City of St. Louis, and that he was at the time of the institution of this suit and at the time of the trial thereof, a person incapable of changing his place of residence from the said City of St. Louis.

"And now comes Forrest P. Tralles and moves the Court that the Court allow him a reasonable fee as attorney for services in representing the said Hugh W. Thomasson under appointment of this Court, and the Court finds the said Tralles is entitled to an allowance against the estate of said Thomasson in the sum of Seven Hundred Fifty Dollars, and the same is hereby allowed and taxed as costs against said estate and ordered certified to the Probate Court of the City of St. Louis for payment in accordance with the law.

"And the Court being satisfied that the said Hugh W. Thomasson is now deceased, doth order that this case abate and the jury having found for the informant upon the issues submitted, all the costs of said cause should be taxed against and paid by the estate of Hugh W. Thomasson.

"Wherefore, it is ordered, adjudged and decreed that this cause do abate and all the costs of said proceeding, including the costs of all depositions, be taxed against and paid by the estate of the said Hugh W. Thomasson, and that said costs be certified to the Probate Court for payment.

"Wherefore, it is ordered that these proceedings and this judgment be certified to the Probate Court of the City of St. Louis, and that all the costs herein assessed against the estate of Hugh W. Thomasson be by said Court allowed and paid out of said estate."

On October 3, 1933, which was after the adjournment of the February Term, 1933, of the Circuit Court, in which the judgment of March 13, 1933, was entered, the Boatmen's National Bank of St. Louis was granted letters of administration pendente lite, de bonis non of the estate of Thomasson, deceased, by the Probate Court of the City of St. Louis, Missouri. The judgment of March 13, 1933, for costs and attorney's fees, having been certified to the probate court as a judgment against the estate of Thomasson, deceased, The Boatmen's National Bank, as administrator pendente lite, de bonis non of said estate, in December, 1934, filed its motion in ...