Morris v. Morris

• Decision Date: 21 January 1908
• Citation: 107 S.W. 405,128 Mo. App. 673
• Parties: MORRIS v. MORRIS.
• Court: Missouri Court of Appeals

107 S.W. 405

128 Mo. App. 673

MORRIS v. MORRIS.

St. Louis Court of Appeals. Missouri.

January 21, 1908.

1. INSANE PERSONS — INQUISITIONS — COSTS.

Under the express provisions of Rev. St. 1899, § 3656 [Ann. St. 1906, p. 2062], if a person alleged to be insane is discharged by the probate court, the court may tax the costs against the person at whose instance the proceeding was had, where he was not an officer acting officially.

2. SAME — REVIEW OF PROCEEDINGS — APPEAL FROM PROBATE TO CIRCUIT COURT.

Rev. St. 1899, c. 39 [Ann. St. 1906, pp. 2060-2072], relating to insane persons, does not provide for an appeal from the probate court to the circuit court from the verdict of a jury in a lunacy inquiry, or from a judgment for costs against the informant, or from the ruling of the court on a motion to tax or retax costs in such a proceeding.

3. APPEAL — NATURE OF REMEDY.

The right to an appeal is purely statutory.

4. INSANE PERSONS — INQUISITIONS — REVIEW OF PROCEEDINGS — APPEAL TO CIRCUIT FROM PROBATE COURT.

Rev. St. 1899, § 278 [Ann. St. 1906, p. 434], relating to appeals from the probate court to the circuit court in administration matters, does not provide for an appeal from the probate court to the circuit court from a ruling on a motion to tax or retax costs in a lunacy inquiry.

5. COURTS — SUPERVISORY JURISDICTION.

Rev. St. 1899, § 1674, subd. 4 [Ann. St. 1906, p. 1217], which confers upon the circuit courts a superintending control over the probate courts, does not contemplate an appeal to the former court from a decision of the latter.

6. SAME.

The only means by which a circuit court can exercise the superintending control over the probate court, given by Rev. St. 1899, § 1674, subd. 4 [Ann. St. 1906, p. 1217], is by an original writ, such as certiorari, mandamus, or prohibition, issuing out of the former court directed to the latter.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Information by Sam Morris for an inquiry as to the lunacy of Joe Morris. From an order dismissing an appeal from the probate court to the circuit court, informant appeals. Affirmed.

Matson & May, for appellant.

BLAND, P. J.

On February 16, 1907, appellant filed an information in the probate court of Pike county under the provisions of chapter 39, Rev. St. 1899 [Ann. St. 1906, pp. 2060-2072], alleging that respondent was of unsound mind and incapable of managing his affairs, and praying that an inquiry of lunacy be had. On March 11, 1907, during an adjourned term of the regular February term, 1907, of the Pike county probate court, an inquiry on the sanity of respondent was had. The jury found him to be of sound mind, and the costs of the proceeding were adjudged against appellant. On March 19th and during the continuation of the adjourned term, a motion to retax the costs of 60 or more witnesses was filed by appellant. On Tuesday, May 9th, and during the February adjourned term, the motion was taken up and overruled by the probate court, except as to the costs of 2 witnesses. Afterwards, to wit, on May 14th, and during the regular May term, 1907, of the Pike probate court, appellant filed his affidavit for an appeal to the circuit court, which appeal was allowed. In the circuit court respondent, appearing only for the purposes of the motion, filed his motion to dismiss the appeal on two grounds: First, that no appeal lies from the proceedings in a probate court in this character of...