State ex rel. Bostian v. Ridge

• Decision Date: 02 July 1945
• Docket Number: 39364
• Parties: 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
• Court: Missouri Supreme Court

188 S.W.2d 941

354 Mo. 145

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

July 2, 1945

Original Proceeding in Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

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. Rombauer, 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. Holtcamp, 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 F. 861; In re Mosier, 112 F. 138; Kleinschmidt v. Schroeter, 94 F.2d 707; Horton v. Moore, 110 F.2d 189; Board of Trade v. Johnson, 264 U.S. 1, 68 L.Ed. 533; In re Marsters, 101 F.2d 365; Gamble v. Daniel, 39 F.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. Boyce, 130 Mo. 572, 31 S.W. 594; Boyce 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. Rassieur, 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.

OPINION

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 1/4 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 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 counsel were present at this hearing and respondent claims that they had full opportunity to participate therein; and that relator is bound by the result thereof. Relator claims that the administrator and claimant acted in collusion to have the claim allowed; that he took no part in the hearing; that claimant (although an incompetent witness) was permitted by the administrator to testify to transactions with his deceased brother; and that there was a good defense to the merits; but that the administrator wanted the claim allowed and made no actual defense.

The November Term adjourned on February 5, 1943 and the administrator appealed from the allowance of the claim on February 25, 1943. (More than ten days after end of term. See Section 285. This and all other references to statutes are to R.S. 1939 and Mo. Stat. Ann.) This appeal was dismissed in the Circuit Court on November 29, 1943 because not timely taken, but in the meantime several other material proceedings were undertaken.

On April 16, 1943, relator filed a petition in the Probate Court to vacate claimant's allowance. (Within four months after allowance. See Section 211.) The petition alleged that the...