State ex rel. Bostian v. Ridge, No. 39364.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation188 S.W.2d 941
Decision Date02 July 1945
Docket NumberNo. 39364.
PartiesSTATE OF MISSOURI, at the Relation of WILLIAM B. BOSTIAN, as Trustee in Bankruptcy of BESSIE EICHENBERG, Relator, v. HONORABLE ALBERT A. RIDGE, as Judge of Division Number 6 of the Circuit Court of Jackson County, Missouri.
188 S.W.2d 941
STATE OF MISSOURI, at the Relation of WILLIAM B. BOSTIAN, as Trustee in Bankruptcy of BESSIE EICHENBERG, Relator,
v.
HONORABLE ALBERT A. RIDGE, as Judge of Division Number 6 of the Circuit Court of Jackson County, Missouri.
No. 39364.
Supreme Court of Missouri.
Court en Banc, July 2, 1945.

Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

Nelson E. Johnson and C.E. Thomson for relator.

(1) The Supreme Court has power by writ of prohibition to restrain a circuit court from attempting to exercise jurisdiction in a cause wherein it is not vested with jurisdiction and the writ is available to keep a circuit court within the limits of its power in a particular proceeding. State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W. (2d) 8; State ex rel. Wurdeman v. Reynolds, 275 Mo. 113, 204 S.W. 1093; State ex rel. Sale v. Nortoni, 201 Mo. 1, 98 S.W. 554; State ex rel. Blakemore v. Rombaner, 101 Mo. 499, 14 S.W. 726; State ex rel. Ghan v. Gideon, 119 S.W. (2d) 89; State ex rel. Schoenfelder v. Owen, 347 Mo. 1131, 152 S.W. (2d) 60. (2) A writ of prohibition is the proper remedy to be employed to prohibit one court from intermeddling with a suit, the subject of which is already in process of litigation in another court, which has acquired jurisdiction both of the subject matter and of the parties. State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W. (2d) 8. (3) The order of the probate court attempted to be appealed from is not appealable, therefore the respondent has no jurisdiction thereof. Secs. 211, 283, 2100, R.S. 1939; State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Case v. Smith. 215 Mo. App. 621, 257 S.W. 148; Hays v. Dow, 166 S.W. (2d) 309; Doerschuk v. Locke, 330 Mo. 819, 51 S.W. (2d) 62: In re Waters Estate, 153 S.W. (2d) 774; Monahan v. Monahan's Estate, 232 Mo. App. 91, 89 S.W. (2d) 153; Lucitt v. Toohey's Estate, 338 Mo. 343. 89 S.W. (2d) 662; Laws 1941, p. 288; State ex rel. Russell v. Mueller, 332 Mo. 758, 60 S.W. (2d) 48; State ex rel. Townsend v. Holteamp, 330 Mo. 1101, 55 S.W. (2d) 428; State ex rel. Drainage Dist. v. Duncan, 334 Mo. 733, 68 S.W. (2d) 679; State ex rel. Darst v. Wurdeman, 304 Mo. 583, 264 S.W. 402; Hill-Behan Lbr. Co. v. Hammer Dry Plate Co., 162 S.W. (2d) 348; King v. Stott's Estate, 254 Mo. 198, 162 S.W. 246; Sec. 70 (a), of the Bankruptcy Act, 11 U.S.C.A., Sec. 110a; Vantage Mining Co. v. Baker, 170 Mo. App. 457, 155 S.W. 466; Pollack v. Meyer Bros. Drug Co., 233 Fed. 861; In re Mosier, 112 Fed. 138; Kleinschmidt v. Schroeter, 94 Fed. (2d) 707; Horton v. Moore, 110 Fed. (2d) 189; Board of Trade v. Johnson, 264 U.S. 1, 68 L. Ed. 533; In re Marsters, 101 Fed. (2d) 365; Gamble v. Daniel, 39 Fed. (2d) 447. (4) The petition and affidavit of William B. Bostian, Trustee in Bankruptcy of Bessie Eichenberg, to set aside the allowance of the claim of Charles E. Milens, was validly filed in the Probate Court of Jackson County, Missouri, at Kansas City, on April 16, 1943. Sims v. Todd, 72 Mo. 288; Lucitt v. Toohey's Estate, 338 Mo. 343, 89 S.W. (2d) 662; Secs. 211, 285, R.S. 1939; Cissell v. Cissell, 77 Mo. 371; State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Hays v. Dow, 166 S.W. (2d) 309; King v. Stott's Estate, 254 Mo. 198, 162 S.W. 246; State ex rel. Elam v. Henson, 217 S.W. 17; State ex rel. Allen v. Guthrie, 245 Mo. 144, 149 S.W. 305; Crawford v. Chicago, R.I. & P. Ry. Co., 171 Mo. 68, 66 S.W. 350; Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; State ex rel. Riefling v. Sale, 153 Mo. App. 273, 133 S.W. 119; Glass v. Glass, 226 Mo. App. 78, 39 S.W. (2d) 816; Drennan v. Drennan, 104 S.W. (2d) 691; State ex rel. Kranke v. Calhoun, 232 S.W. 1038; Ex parte Fuller, 182 U.S. 562, 45 L. Ed. 1230; Hellman v. Adler & Sons, 60 Neb. 580, 83 N.W. 846; Chambliss v. Hass, 101 N.W. 153; Cook v. Smith, 58 Iowa, 607, 12 N.W. 617; Domboorajian v. Domboorajian, 235 Mich. 668, 209 N.W. 846; State ex rel. Inv. Co. v. Brown, 228 Mo. App. 760, 72 S.W. (2d) 859.

Julius C. Shapiro for respondent.

(1) The appeal of Charles E. Milens, claimant, was expressly authorized by statute specifically covering the subject of distribution and apportionment to or among creditors in payment of their allowed claims. Secs. 211, 283, R.S. 1939; State ex rel. Herriford v. McKee, 150 Mo. 233, 51 S.W. 421; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 403. (2) Relator, having appeared at the hearing of the Milens claim in the probate court and having participated therein, is not entitled to the benefits of R.S. 1939, Sec. 211; consequently relator is in no position to question respondent's jurisdiction. Secs. 211, 283, R.S. 1939; Keele v. Weeks, 118 Mo. App. 262, 94 S.W. 775; McCormick v. Groh, 198 S.W. 445; In re Ford, 157 Mo. App. 141, 137 S.W. 32; Tower v. Moore, 52 Mo. 118; King v. Stotts' Estate, 254 Mo. 198, 162 S.W. 246; State ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396; Levine v. Marchisic, 270 S.W. 643. (3) The Circuit Court of Jackson County, at the time of the attempted filing of the petition and affidavit to set aside the allowance of the claim of Charles E. Milens had jurisdiction of the subject matter of the Charles E. Milens claim: as a consequence, the probate court had no jurisdiction, and the purported filing of said petition and affidavit was a nullity. Leahy v. Mercantile Trust Co., 269 Mo. 561, 247 S.W. 396; Moberly v. Powell, 229 Mo. App. 857, 86 S.W. (2d) 383; State ex rel. McGee v. Owen, 121 S.W. (2d) 765; Brill v. Meek, 20 Mo. 358; Oberkoetter v. Luebbering, 4 Mo. App. 481; State ex rel. Riefling v. Sale, 153 Mo. App. 273, 133 S.W. 119; In re Ermeling's Estate, 131 S.W. (2d) 912; State ex rel. Powers v. Rassieur, 190 S.W. 915. (4) Irrespective of the question of jurisdiction, that is to say, a filing in a "non-pending cause," the petition and affidavit of relator in any event was prematurely filed in the probate court, and hence nugatory. Sec. 211, R.S. 1939; Lucitt v. Toohey's Estate, 338 Mo. 343, 89 S.W. (2d) 662; St. Louis v. Boyee, 130 Mo. 572, 31 S.W. 594; Boyee v. Osceola Circuit Judge, 79 Mich. 154, 44 N.W. 343; McBride v. Chippewa Circuit Judge, 202 Mich. 61, 167 N.W. 934; Thorndale Mercantile Co. v. Continental Gin Co., 241 S.W. 260; Dignowity v. Court of Civil Appeals, 110 Tex. 613, 210 S.W. 505, 223 S.W. 165; Murphy v. Farmers' Bank, 11 S.W. (2d) 1066. (5) Relator as trustee in bankruptcy of Bessie Eichenberg has no interest in the estate of the deceased. (6) Respondent was vested with jurisdiction to determine whether or not the appeal from the order and judgment of the probate court refusing distribution and payment of the allowed claim of Charles E. Milens was properly before him for consideration, as judge of the circuit court. If the respondent had jurisdiction, then there is no basis for these prohibition proceedings; if in ruling on the jurisdictional question the respondent should decide adversely to the relator, then relator's proper remedy is by appeal. Martin v. Nichols, 54 Mo. App. 594; McCormick v. Groh, 198 S.W. 445; State ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; Sec. 283, R.S. 1939; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396; State ex rel. Johnson v. Withrow. 108 Mo. 1, 18 S.W. 41; State ex rel. Powers v. Rassicur, 190 S.W. 915; Traders Natl. Bank v. Hermer, 202 Mo. App. 402, 218 S.W. 937; Farmers & Merchants Bank v. Richards, 119 Mo. App. 18, 95 S.W. 290; Walther v. Null, 233 Mo. 104, 134 S.W. 993.

HYDE, J.


Original proceeding in prohibition. The question is whether the Circuit Court has jurisdiction to try a claimant's appeal from an order of the Probate Court overruling an application to require an administrator to pay his claim. Relator claims that this was not an appealable order because an application to set aside the allowance of the claim was pending undetermined in the Probate Court at the time. The present Judge of Division No. 6 of the Circuit Court, Honorable James W. Broaddus, has been substituted for the original respondent.

The controversy is over the ¼ share of Bessie Eichenberg (hereinafter called the bankrupt) in the estate of her brother Harry C. Milens, deceased. Another brother M.G. Milens (hereinafter called the administrator) was appointed administrator of this estate, by the Probate Court of Jackson County, in February, 1942. William B. Bostian (relator) was appointed trustee of the bankrupt's estate in August, 1942. Another brother Charles E. Milens (hereinafter called claimant) obtained an

188 S.W.2d 942

allowance of a claim of $10,450.00 against the Milens estate on December 22, 1942, at the November Term of the Probate Court. Relator and his...

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2 practice notes
  • State ex rel. Seiser's Estate v. Lasky, No. 39768
    • United States
    • Court of Appeal of Missouri (US)
    • April 18, 1978
    ...or a motion to set aside and vacate. He cannot pursue both avenues, but may choose either. State ex rel. Bostian v. Ridge, 354 Mo. 145, 188 S.W.2d 941(4) (Mo.1945). Thus, claimant could have pursued either appeal within 30 days or a motion to set aside. She chose the Section 472.150 has exp......
  • Clark's Estate v. Finney, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • December 2, 1980
    ...The aggrieved party may choose either alternative, but he cannot pursue both avenues. State ex rel. Bostian v. Ridge, 354 Mo. 145, 188 S.W.2d 941 (Mo.1945). In matters of general estate administration (allowance of claims, approval of settlements, etc.), the remedy of the motion to vacate i......
2 cases
  • State ex rel. Seiser's Estate v. Lasky, No. 39768
    • United States
    • Court of Appeal of Missouri (US)
    • April 18, 1978
    ...or a motion to set aside and vacate. He cannot pursue both avenues, but may choose either. State ex rel. Bostian v. Ridge, 354 Mo. 145, 188 S.W.2d 941(4) (Mo.1945). Thus, claimant could have pursued either appeal within 30 days or a motion to set aside. She chose the Section 472.150 has exp......
  • Clark's Estate v. Finney, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • December 2, 1980
    ...The aggrieved party may choose either alternative, but he cannot pursue both avenues. State ex rel. Bostian v. Ridge, 354 Mo. 145, 188 S.W.2d 941 (Mo.1945). In matters of general estate administration (allowance of claims, approval of settlements, etc.), the remedy of the motion to vacate i......

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