State ex rel. and to Use of Clay County State Bank v. Waltner

• Citation: 145 S.W.2d 152,346 Mo. 1138
• Decision Date: 03 December 1940
• Docket Number: 37281
• Parties: State of Missouri at the relation and to the use of Clay County State Bank, a Corporation, and Excelsior Trust Company, a Corporation, Relators, v. Marion D. Waltner, Judge of the Independence Division of the Circuit Court of Jackson County, and one of the Judges of the Sixteenth Judicial Circuit of Missouri, in Jackson County
• Court: United States State Supreme Court of Missouri

145 S.W.2d 152

346 Mo. 1138

State of Missouri at the relation and to the use of Clay County State Bank, a Corporation, and Excelsior Trust Company, a Corporation, Relators, v. Marion D. Waltner, Judge of the Independence Division of the Circuit Court of Jackson County, and one of the Judges of the Sixteenth Judicial Circuit of Missouri, in Jackson County

No. 37281

Supreme Court of Missouri

December 3, 1940

Preliminary writ in prohibition quashed.

John W. Moore, Robert H. Moore and Richard A. Moore for relators.

(1) Under the pleadings before respondent, this action cannot be maintained by virtue of the Declaratory Judgment Act. Plaintiff does not come within the specific terms of the act she has adequate existing remedies and the act did not repeal the statute for discovery of assets in probate court. Laws 1935, p. 218; State ex rel. v. Terte, 131 S.W.2d 587; 1 C. J. S., p. 1027, sec. 18d; 68 A. L. R. 119; 87 A. L R. 1219; Secs. 63, 67, R. S. 1929; Village of Grosse Pointe Shores v. Ayers, 235 N.W. 829; 16 Am. Jur., pp 280-1, secs. 7, 286, 13. (2) Even if the Declaratory Judgment Act could be construed to authorize plaintiff to maintain some phase of this proceeding, still, such act does not repeal Section 765, Revised Statutes 1929, nor authorize the joinder of any cause of action against relators with any other cause of action shown by the pleadings. Sec. 765, R. S. 1929; 1 C. J. S., p. 1023, sec. 18 d; 1 C. J. S., pp. 1053-4; 16 Am. Jur., p. 332, sec. 62; 110 A. L. R. 817-19; Millard County v. Millard County Drain. Dist. No. 1, 46 P.2d 423; Edwards v. Bernstein, 23 Ky. 100, 21 S.W.2d 133; Block v. Elkhorn Coal Corp., 233 Ky. 588, 26 S.W.2d 481. (3) The venue of this action before respondent is improper as to relators because it is not brought in the county of the residence of any of the relators' codefendants with whom relators are subject to joint action. On the face of the pleadings as to any cause of action stated against resident defendants, no cause of action is stated against relators, and as to any cause of action stated against relators, no cause of action is stated against the resident defendants. R. S. 1929, secs. 720, 723, 696, 698-702; State ex rel. v. Aronson, 138 S.W.2d 1; Winters v. Commercial Bank, 238 S.W. 833; State ex rel. v. Bradley, 193 Mo. 33, 91 S.W. 483; State ex rel. v. Shelton, 249 Mo. 660, 156 S.W. 955; Riffe v. Wabash Ry. Co., 200 Mo.App. 397, 207 S.W. 78; 67 C. J. 107, secs. 168-179. (4) Respondent does not have jurisdiction of the subject matter of any cause of action shown by the pleadings, the object of which is the determination of title to personal property between an estate and alleged donees. The exclusive original jurisdiction of any such cause of action is in the Probate Court of Clay County unless such jurisdiction cannot be properly exercised by it, and no fact is alleged in any of the pleadings before respondent showing such jurisdiction may not be properly exercised. State ex rel. v. Wolfe, 122 S.W.2d 909, 343 Mo. 580; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746; Phillips v. Alford, 90 S.W.2d 1060; Brewing Co. v. Steckman, 180 Mo.App. 320, 168 S.W. 226; Kerwin v. Kerwin, 204 S.W. 922; State ex rel. v. Bruce, 334 Mo. 1107, 70 S.W.2d 854; Hax v. O'Donnell, 117 S.W.2d 672; R. S. 1929, secs. 63-66. (5) There is no equitable question of interpleader in this matter to prevent the jurisdiction of the probate court from being exercised, because plaintiff, as one claimant to a fund, may not maintain a suit in the nature of a bill of interpleader where action at law is adequate. Hathaway v. Foy, 40 Mo. 540; Arn v. Arn, 81 Mo.App. 133; Lavelle v. Belliu, 121 Mo.App. 442, 97 S.W. 200; Bentrup v. Johnson, 223 Mo.App. 299, 14 S.W.2d 537.

Hart & Joyce and Roach & Brenner for respondent.

(1) The Circuit Court of Jackson County at Independence where the respondent presides, having general equity jurisdiction, was the proper forum for plaintiff Julia Lisby to institute and prosecute her action to declare and enforce a trust. State ex rel. v. Akin, 22 S.W.2d 836; Broadway Bank v. Schlater, 17 S.W.2d 591; Harris Banking Co. v. Miller, 190 Mo. 66; Clay v. Walker, 6 S.W.2d 967; 65 C. J., pp. 1011, 1013, secs. 940-942; First Baptist Church v. Robberson, 71 Mo. 337; Presbyterian Church v. McElhinney, 61 Mo. 543; Rawlings v. Rawlings, 58 S.W.2d 738; Deitrich v. Jones, 52 S.W.2d 1061; Ewing v. Parrish, 148 Mo.App. 504; State ex rel. North St. Louis Trust Co. v. Wolfe, 122 S.W.2d 909. (a) The Probate Court of Clay County has no jurisdiction to declare and enforce a trust such as is pleaded in the petition of plaintiff, Julia Lisby. State ex rel. v. Akin, 22 S.W.2d 836; Clay v. Walker, 6 S.W.2d 967; 65 C. J., p. 1012, sec. 942; Presbyterian Church v. McElhinney, 61 Mo. 543; In re Estate of Clover & Shepley v. Shepley, 127 Mo. 164; Rawlings v. Rawlings, 58 S.W.2d 738; Bond v. Unsell, 72 S.W.2d 874; Cunningham v. Kinnerk, 74 S.W.2d 1110; Dietrich v. Jones, 53 S.W.2d 1062; Orr v. St. Louis Union Trust Co., 236 S.W. 649; State ex rel. v. Blair, 131 Mo.App. 299; 26 R. C. L., sec. 226, p. 1363. (2) The court over which respondent presides has general equity jurisdiction. It is possessed of the subject matter and has jurisdiction of all the parties interested in the action of plaintiff Julia Lisby, and the respondent has the jurisdiction and duty to proceed to a full determination of the rights of all the parties, whether legal or equitable. Butler v. Lawson, 72 Mo. 248; Methodist Benev. Assn. v. Bank, 54 S.W.2d 474; Winning v. Brown, 100 S.W.2d 303; Jaudon v. Lantaz, 47 S.W.2d 188; Jones v. McGoneble, 37 S.W.2d 892; Wiemer v. Wagner, 20 S.W.2d 650; Cape County Sav. Bank v. Wilson, 34 S.W.2d 981; Schwartzmann v. London & Lancashire Fire Ins. Co., 2 S.W.2d 592; 65 C. J., p. 1013, sec. 942. (3) It was proper for plaintiff to plead in her petition all the facts necessary to a complete determination of the entire controversy and to join all of the defendants who are interested in the subject matter involved. Sec. 765, R. S. 1929. (4) Plaintiff Julia Lisby may plead, prosecute and have relief against all of the defendants, whether the matter pleaded be legal or equitable. Babcock v. Rieger, 58 S.W.2d 722; Fulton v. Fischer, 239 Mo. 116; Joyce v. Growney, 154 Mo. 253. (5) The cause pleaded by plaintiff Julia Lisby is of purely equitable cognizance, and the summary statutory remedy in the probate court under the discovery of assets statute is not available. Phillips v. Alford, 90 S.W.2d 1060; Davis v. Johnson, 58 S.W.2d 746; In re Estate of Glover v. Shepley, 127 Mo. 164; Brewing Co. v. Stickmann, 180 Mo.App. 320. (6) Your relators, the Clay County State Bank and Excelsior Trust Company claim an interest in the subject matter of the action pleaded by plaintiff, Julia Lisby, and are therefore proper parties to the action. Secs. 701, 703, R. S. 1929; In re Carlin's Est., 47 S.W.2d 215; Clay v. Walker, 6 S.W.2d 967; Shelton v. Harrison, 182 Mo.App. 414; Spicer v. Spicer, 249 Mo. 583; Butler v. Lawson, 72 Mo. 248. (7) The venue of this action is properly brought in respondent's judicial circuit, because the defendants, Stella Darling, Mahala McKenzie, individually, and Mahala McKenzie as administratrix of the estate of Cyrus Haskin Blakely, deceased, are residents of Jackson County, Missouri. Sec. 720, R. S. 1929; State ex rel. Henning v. Williams, 131 S.W.2d 561; Davison v. Hough, 165 Mo. 561, 65 S.W. 731; Chorn v. Zollinger, 143 Mo.App. 191, 128 S.W. 213. (8) The respondent has jurisdiction of the class of cases such as described in the petition of plaintiff Julia Lisby, and has jurisdiction of the subject matter of the action and of the parties; therefor prohibition will not lie. State ex rel. v. Hendrichs, 36 S.W.2d 409; State ex rel. v. Johnson, 239 S.W. 848; State ex rel. v. Calvird, 195 Mo.App. 354; State ex rel. v. Ryan, 67 S.W.2d 985; State ex rel. v. Harris, 67 S.W.2d 983. (9) The action of plaintiff Julia Lisby is one of a class of cases of which the respondent has jurisdiction. Error cannot be properly anticipated, neither should the respondent's discretion and freedom to act properly and within his jurisdiction be controlled by prohibition. The right to hear, determine and decide, whether rightfully or wrongfully, is denominated jurisdiction. State ex rel. v. Withrow, 108 Mo. 8; State ex rel. v. Greene, 92 S.W.2d 936; State ex rel. v. Pearcy, 41 S.W.2d 403. (10) Prohibition is not a writ of right. The issuance of the writ is dependent upon the facts of the particular case, measured by the discretion of the court to which the application is made. Interfering, as the writ seeks to do, with the action of a subordinate tribunal, moving, as such a tribunal is presumed to move, within its prescribed orbit, the writ is never properly granted except where usurpation of jurisdiction or an act in excess of same is clearly evident. State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72; State ex rel. Morse v. Burckhartt, 87 Mo. 533; State ex rel. Clark v. Klene, 201 Mo.App. 417, 212 S.W. 55; State ex rel. Keirsey v. Calvird, 195 Mo.App. 356, 191 S.W. 1080; State ex rel. Finch v. Duncan, 195 Mo.App. 545, 193 S.W. 950; School Dist. v. Sims, 193 Mo.App. 484, 186 S.W. 4.

Cooley, C. Westhues, C., concurs; Bohling, C., concurs in result.

OPINION

COOLEY

This is an original proceeding in prohibition. Our preliminary writ issued, to which respondent made return. Relators filed motion for judgment on the pleadings and for peremptory writ. The cause is at issue on such pleadings. Relators challenge the jurisdiction of the circuit court, both of the subject matter of the action there pending and of the persons of relators.

Julia Lisby, as plaintiff, and whom we shall refer to as plaintiff filed petition in the Circuit Court of Jackson County,...