Mueller v. Wurdeman

• Decision Date: 08 July 1921
• Docket Number: No. 22551.,22551.
• Citation: 232 S.W. 1002
• Parties: STATE ex rel. MUELLER v. WURDEMAN Circuit Judge, et al.
• Court: Missouri Supreme Court

232 S.W. 1002

STATE ex rel. MUELLER v. WURDEMAN Circuit Judge, et al.

No. 22551.

Supreme Court of Missouri, en Banc.

July 8, 1921.

Original proceeding in prohibition by the State, on the relation of Frederick E. Mueller, administrator pendente lite of the estate of Francis P. Wilkinson, against G. A. Wurdeman, Judge of the Circuit Court of St. Louis County, and others. Preliminary rule issued, and, on respondent's filing his return, relator filed motion for judgment on the pleadings and to make the preliminary rule absolute. Motion denied, and preliminary rule vacated.

Arthur V. Lashly, of Clayton, and Hans Wulff and Julian Laughlin, both of St. Louis, for relator.

E. McD. Stevens and Roy Schooley, both of Clayton, for respondents.

DAVID E. BLAIR, J.

This is an original proceeding in prohibition. Preliminary rule issued. A copy of the petition was attached to and made a part of such preliminary rule. Respondent G. A. Wurdeman duly filed his return, and relator thereafter filed his motion for judgment on the pleadings and to make the preliminary rule absolute, for the reason that in his return respondent admits all of the facts alleged in relator's petition, and because the facts set up in said return in attempted avoidance of relator's right to our writ are insufficient to constitute any legal and valid reason why said preliminary rule should not be made absolute. It stands admitted that the case of Horst v. Mittelberg, a proceeding to require Arthur Mittelberg, as executor of the estate of Francis P. Wilkinson, deceased, to make a deed to said Horst in specific performance of a contract with Francis P. Wilkinson and wife in their lifetime, was and is pending in said circuit court; that on June 28, 1920, the probate court of St. Louis county duly appointed relator as administrator pendente lite of the estate of Francis P. Wilkinson, deceased, during the pendency of a certain suit to contest the will of said Francis P. Wilkinson, deceased, pending and undetermined in division 1 of the circuit court of St. Louis county; that on the same date said probate court "purported to order and direct" relator to take charge of a tract of ground in St. Louis county containing about 77 acres of land, known as the Wilkinson farm, and that said land is all the real estate belonging to the estate of said Francis P. Wilkinson, deceased that on February 26, 1920, the action of George Horst v. Arthur Mittelberg, executor, was transferred by writ of certiorari from said probate court to the circuit court of. St. Louis county; that on July 6, 1920, respondent Wurdeman entered an order in said cause appointing Roy Schooley as receiver, approving his bond, and requiring such receiver to take possession of the said Wilkinson-farm; that on July 14, 1920, by order of court, relator was permitted to intervene in said case for the sole purpose of moving to quash the order of July 6, 1920, appointing said receiver and approving his bond, and ordering him to take charge of said real estate, and that said motion to quash was overruled on September 20, 1920. Respondent denied all other allegations in relator's petition.

The facts alleged in respondent's return, which are admitted by the motion for judgment to be true, are that the case of Horst v. Mittelberg, executor, came on for hearing before respondent on April 2 and 3, 1920, and was taken under advisement by him until April 8, 1920, at the request of counsel representing relator in this proceeding, who were at that time representing certain devisees under the will of said Wilkinson, deceased; that before April 8, 1920, the date set by respondent for his decision in said case, Mary W. Elirich, by her counsel, instituted suit to contest the will of said Francis P. Wilkinson, deceased, necessitating the appointment of an administrator pendente lite in the probate court, and that the relator was appointed by said probate court as such administrator pendente lite; that thereafter, and on April 8, 1920, respondent read into the record in his court his findings of fact and conclusions of law in the case of Horst v. Mittelberg, to the effect that respondent found that said Wilkinson and his wife, both deceased, duly executed a contract for the sale of the Wilkinson farm to said Horst, and that Horst paid them $100 as earnest money, and subsequently duly made tender to them of performance on his part of the terms of said contract, and acceptance of such tender was by them refused; that the price was reasonable and fair, and that Wilkinson and his said wife had sufficient mental capacity to make such contract; that respondent did not enter formal judgment in said cause on account of the filing of said will contest and the appointment of relator as administrator pendente lite by the probate court, and that respondent took the view that he could not render judgment in said case until final determination of the will contest; that thereafter George Horst filed his application for the appointment of a receiver to take charge of said farm, and that thereafter respondent heard said application and found that the allegations contained therein were true, and that a receiver should be apppointed for the best interests of the parties concerned, and that said administrator pendente lite could not take possession of or sell said real estate because of the pendency of the suit for specific performance before respondent.

It appears from the abstract of the record that on June 28, 1920, the probate court ordered said administrator pendente lite, the relator here, to take charge and possession of said Wilkinson farm and to rent the same for one year for the purpose of paying off the debts of the estate. No appeal was taken from the order of respondent, made in his court, refusing to revoke his interlocutory order appointing a receiver and approving his...