State ex rel. Bernero v. McQuillin

• Decision Date: 10 December 1912
• Citation: 152 S.W. 347,246 Mo. 517
• Parties: THE STATE ex rel. LOUIS BERNERO, an Infant, by LORRAINE T. BERNERO, Curatrix, v. EUGENE McQUILLIN, Judge
• Court: Missouri Supreme Court

152 S.W. 347

246 Mo. 517

THE STATE ex rel. LOUIS BERNERO, an Infant, by LORRAINE T. BERNERO, Curatrix,
v.
EUGENE McQUILLIN, Judge

Supreme Court of Missouri

December 10, 1912

Writ denied.

Thomas D. Cannon, Moses N. Sale, David Goldsmith, Ernest P. McCarthy and John A. Burke for relator.

(1) The relator was entitled to dismiss his petition in the action to quiet title; and when the dismissal was entered, it ended the entire case, and accordingly the jurisdiction of the court to proceed further ceased. Gray v. Ward, 234 Mo. 291; Mann v. Doerr, 222 Mo. 11; Podesta v. Land Co., 152 Mo.App. 396. (2) The respondent was entirely without jurisdiction to hear and determine the question whether the relator here was or was not a proper party plaintiff in the suit to contest the alleged will of Theresa Bernero, under the provisions of Sec. 555, R.S. 1909, because said will contest was not pending before respondent for hearing or consideration. In said will contest the plaintiff (relator here) pleaded that he was "heir at law, next of kin and grandchild of said Theresa Bernero, deceased." And the respondent in the case pending before him (the suit to quiet title), could not and had no power to hear and determine the issues made in the will contest which was not pending before him for hearing or consideration. A question of proper parties plaintiff and defendant in said will contest can only be heard and determined in that case by a court having jurisdiction thereof and in a proper and lawful proceeding, and when the proper parties are before the court. Hope v. Blair, 105 Mo. 85; State ex rel. v. Muench, 217 Mo. 137; State ex rel. v. Williams, 221 Mo. 252; Munday v. Vail, 34 N.J.L. 422. (3) No right can be predicated upon the provisions of the alleged will of Theresa Bernero, deceased, until and unless it has been admitted to probate by a court of competent jurisdiction. It affirmatively appeared that the relator had prior to April 2, 1912, filed a suit under the provisions of Sec. 555, R.S. 1909, to contest the alleged will of Theresa Bernero, that plaintiff alleged in said will contest that he was an "heir at law, next of kin and grandchild" of the said Theresa Bernero. The defendants base their defense and cross-bills upon the provisions of said alleged will, notwithstanding that said alleged will is being contested, as aforesaid, and has not been admitted to probate in solemn form. Until the alleged will is probated in solemn form, if ever, it is a mere scroll or writing of no force or effect; the defendants or either of them can predicate no right or title upon its terms, and the circuit court could not lawfully enter a judgment construing its provisions. State ex rel. v. Imel, 243 Mo. 174; Hartwell v. Parks, 240 Mo. 537; Farris v. Burchard, 242 Mo. 1; State ex rel. v. Guinotte, 156 Mo. 513; Schaff v. Peters, 111 Mo.App. 447; Bridwell v. Swank, 84 Mo.App. 455; Lamb v. Helm, 56 Mo. 420. (4) The respondent cannot make any order or judgment in the suit to quiet title that would be effective, while the will contest is still pending and undetermined. If the alleged will of Theresa Bernero, deceased, should be found by the jury not to be her last will, an appeal from an adverse judgment in the suit to quiet title would not afford plaintiff in the latter suit an adequate and complete remedy. Our courts frequently treat for prohibition purposes, an improper exercise of jurisdiction, or an excessive application of judicial force, as though no jurisdiction existed. It appearing therefore that no other remedy except prohibition will do the relator complete, speedy and adequate justice, this court will prohibit the respondent from further proceedings in said suit to quiet title, until such time as the said will contest has been tried and decided. Sherkey v. Kiernan, 97 Mo. 105; State ex rel. v. Bright, 224 Mo. 535; State ex rel. v. Williams, 221 Mo. 246; State v. Denton, 128 Mo.App. 304; State ex rel. v. Sale, 188 Mo. 496; State ex rel. v. Eby, 170 Mo. 526; State ex rel. v. Spencer, 166 Mo. 278; State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Elkin, 130 Mo. 109; Carter v. Bolster, 122 Mo.App. 144; State ex rel. v. Fort, 107 Mo.App. 337; State ex rel. v. Cline, 85 Mo.App. 632; State ex rel. v. Allen, 45 Mo.App. 563; Craycroft v. Superior Court, 124 P. 1045; White v. Superior Court, 126 Cal. 247; Cronan v. Dist. Court, 96 P. 768; Terrill v. Superior Court, 60 P. 40; Havemeyer v. Superior Court, 84 Cal. 395; State v. County Court, 97 Wis. 15.

Stewart, Bryan & Williams and McShane & Goodwin for respondent.

(1) Relator must be injured or affected by the proceedings sought to be restrained; otherwise prohibition will not lie. 32 Cyc. 622; State ex rel. v. Main, 113 P. 632; State ex rel. v. Prosser, 2 Wash. 530. This court will not determine whether the writ prayed for should go, unless relator is interested in or affected by the action sought to be restrained. State ex rel. v. Blake, 241 Mo. 100; Ordelheide v. Modern Brotherhood, 226 Mo. 203. Relator must be a right heir of Louis Bernero before he can be interested in or affected by the action of the lower court. Relator is the child of Manuello Bernero, who he claims was adopted by Louis Bernero, deceased. Under such facts, if true, relator cannot be a "right heir" of Louis Bernero. Reinders v. Koppelman, 94 Mo. 338; Clarkson v. Hatton, 143 Mo. 47; Hockaday v. Lynn, 200 Mo. 456. "Right heirs" are such persons upon whom descent is cast by the law of descent and distribution. Heirs created by adoption are "contract heirs," and do not take under the Statutes of Descents and Distributions, but by virtue of their contract. Thus, an adopted child and his descendants cannot be "right heirs." Relator therefore has no interest in and cannot be affected by any action of respondent in the suit sought to be prohibited. Cases above cited. (2) Respondent has the power, authority and jurisdiction to hear and determine the request or prayer of defendants for cross-relief in suits to quiet title after plaintiff has dismissed his petition. R.S. 1909, Sec. 2535. This particular power was granted respondent by the Legislature in 1909. Laws 1909, p. 343. Respondent had jurisdiction to pass upon relator's application for a stay. McMahon v. Hubbard, 217 Mo. 624.

LAMM, J. Woodson, J., not sitting.

OPINION [152 S.W. 348]

[246 Mo. 523] In Banc.

Prohibition.

LAMM, J.

-- Prohibition. Original proceeding. To our preliminary rule citing Judge McQuillin to show cause, he made return admitting some, and raising an issue of fact on certain other, allegations of the petition. Relator replied to that return, raising an issue of fact on certain allegations of that return. Thereupon by stipulation, to avoid a commissioner to take proof, there is filed here an exemplification of the record entries, evidence, motions and pleas in a certain suit brought by relator to quiet title, and a petition in a certain other suit brought by relator to contest a will, to which exemplification we are referred in order to determine the controverted issues. The suit to quiet title will be hereinafter called "A," that to contest the will will be called "B," for brevity and convenience of reference.

Briefly, to get our bearings at the outset, we are asked by relator to prohibit the trial of a cross-action in A, until such time as B has been determined -- both A and B being pending at the same time in Judge McQuillin's division of the circuit court of the city of St. Louis.

The issues here are of a kind seeking a summary of the pleadings and situation nisi in A, and the vital facts constituting the history of that suit at the time our preliminary rule was passed and served.

[Note: There are two Louis Berneros mentioned in the record, we will call one Louis the elder, the other (the relator, an infant) Louis the younger. The wife of Louis the elder was named Theresa. In this opinion she will be called by her given name alone. The land in dispute in A has a long description. It is a valuable lot in the city of St. Louis and for convenience of reference will be called "X." There is another Bernero mentioned in the record named Manuello. [246 Mo. 524] He is the nephew of the elder and father of the younger Louis and will be called by his surname alone.]

A synopsis of the history of A is this:

The last of August, 1911, Louis the younger (through his mother as curatrix) instituted A. In January, 1912, an amended petition was filed, the object and general nature of which was to determine and adjudge title to X. The amended petition, as was the original, is founded on Sec. 2535, R.S. 1909, formerly section 650, amended in 1909 (Laws 1909, pp. 343-4). Thereby it was alleged, in substance, that Louis the younger is the only child and heir of Manuello; that Manuello died in 1910; that in the year 1880 Manuello was adopted by Louis the elder and Theresa as their son; was "educated, proclaimed, published and maintained" as their son and was, in fact, their adopted son; that Louis the elder died in 1904 testate, owning X; that his will, duly probated in 1904, by its fifth clause disposed of X by giving and devising it to his wife, Theresa, and adopted son, Manuello, in the terms following (quoting):

". . . to have and enjoy for and during the term of her natural life, and at the time of her death the same to pass to our adopted son, Manuello Bernero, if he shall survive her, to have and enjoy during his natural life, and at his decease to pass to and vest in fee in his children, if any he have, or their descendants, but in default or failure of such direct heirs, children or grandchildren him surviving, then at the time of his death the title to said realty in fee shall pass to and vest in my right heirs; if, however, my said wife shall survive said Manuello, then she, said Theresa Bernero, is hereby empowered to devise said realty as she shall see fit, or if she shall fail to make such testamentary...