State ex rel. Callahan v. Hess

• Decision Date: 25 July 1941
• Docket Number: 35806
• Citation: 153 S.W.2d 713,348 Mo. 388
• Parties: State of Missouri at the relation of Mike Callahan, Edward Callahan, Agnes Hausner and Mary O'Brien, Relators, Appellants, v. Sam Hess, Judge of the Probate Court of Phelps County
• Court: Missouri Supreme Court

153 S.W.2d 713

348 Mo. 388

State of Missouri at the relation of Mike Callahan, Edward Callahan, Agnes Hausner and Mary O'Brien, Relators, Appellants, v. Sam Hess, Judge of the Probate Court of Phelps County

No. 35806

Supreme Court of Missouri

July 25, 1941

Appeal from Phelps Circuit Court; Hon. W. E. Barton, Judge.

Affirmed.

H BalkenBush and John P. Peters for appellants.

(1) Certiorari is the appropriate remedy to review the proceedings of a lower court when it has acted beyond and in excess of its jurisdiction or acted irregularly. State ex rel. v. Smith, 176 Mo. 90; State ex rel. v Landon, 304 Mo. 654; State ex rel. v. Caldwell, 310 Mo. 397; State ex rel. v. Scholtzhauer, 315 Mo 347; State ex rel. v. Broaddus, 238 Mo. 189. (2) The Probate Court of Phelps County was without any jurisdiction to enter any judgment attempting to probate the will of William Callahan, deceased, while the same was pending in the breast of the Supreme Court undetermined. The res (the will) was at the time of the purported judgment on the 26th day of February, 1934, lodged with the Supreme Court of Missouri and not in the Probate Court of Phelps County. Consequently the judgment was void. Niedringhaus v. Niedringhaus, 46 S.W.2d 828; State ex rel. v. Reynolds, 209 Mo. 161, 107 S.W. 487; State ex rel. Mason v. Smoll, 37 S.W.2d 972; Ladd Patrick Co. v. Cousins, 35 Mo. 513; Stewart v. Stringer, 41 Mo. 401. After an appeal has been prayed for and allowed, the court has no further jurisdiction or authority to allow a pleading nunc pro tunc. Ladd Patrick Co. v. Cousins, 35 Mo. 513. After an appeal has been allowed the record cannot be changed or altered by either party, nor can an entry be filed nunc pro tunc, and no addition can be made to the record, the court below ceasing to have jurisdiction over it. Stewart v. Stringer, 41 Mo. 401. (3) The purported judgment of the Phelps County Probate Court constituted a constructive contempt of court. It tended to emasculate the final judgment of the Supreme Court, to embarrass and interfere with its process and offends and belittles the dignity of the highest court of the State. Loy v. Alston, 172 F. 90; In re Sheppard, 208 Mo. 121; In re Clark, 177 Mo. 205. The proponents of the will should be denied any further privileges as litigants as punishment for attempting to circumvent the judgment of the Supreme Court. State v. Field, 37 Mo.App. 88. (4) By the purported judgment of the Phelps County Probate Court relators have been deprived of their property without due process of law; and without their day in court as guaranteed by Section 30, Article 2, Constitution of Missouri and the Fourteenth Amendment of the Constitution of the United States. Sec. 30, Art. 2, Mo. Const., 14th Amend., U.S. Const.; 12 C. J., pp. 1188-1193; Womack v. St. Joseph, 201 Mo. 482; State ex rel. v. Holtcamp, 245 Mo. 670; Wilcox v. Phillips, 260 Mo. 679; State ex rel. v. Comm., 51 S.W.2d 73; State ex rel. v. North, 304 Mo. 607. (5) Notice to parties whose rights are to be effected by judicial proceedings is an essential element of due process. The Probation of the Will of William Callahan was no longer an ex parte proceeding. State ex rel. v. North, 304 Mo. 607; Cases under point (4). (6) The judgment of the Probate Court of Phelps County is void because not rendered within one year from date of the first publication of letters testamentary as provided in Section 531, R. S. 1929. Sec. 531, R. S. 1929.

A. B. Holmes and E. W. Allison for respondent.

(1) The petition clearly shows, by the face thereof, that the attempted will contest suit throughout, from the time it was filed in the Circuit Court of Phelps County, on the 4th day of June, 1933, until it was finally decided on appeal in the Supreme Court on the 12th day of November, 1936, was a nullity and could not act as a supersedeas or suspend or vacate any orders of the Probate Court of Phelps County, because the will, upon which the attempted suit was based, had not been probated. Secs. 528, 531, R. S. 1929; Callahan v. Huhlman, 98 S.W.2d 706. (2) The assertion of jurisdiction of the suit, and the subject matter thereof, wrongfully and prematurely brought by relators herein, was beyond the power of the court and therefore, a nullity and absolutely void. In re Buckles, 53 S.W.2d 1057. (3) It was the power and duty of the probate court to proceed with the formal probate of the will and to enter its order of approval and confirmation of its vacation action. Sec. 528, R. S. 1929. (4) The fact that a period of two years' time had elapsed since the vacation order of the probate court, did not alter its power and duty in that regard, for it is decided in this State that a lapse of even 40 years does not prevent the probate court from making the formal order of confirmation and probate. Farris v. Burchard, 262 Mo. 334, 171 S.W. 361. (5) The probate of a will is in rem and ex parte and notice of the proceedings is not necessary. Hughes v. Burriss, 85 Mo. 663; Benoist v. Murrin, 48 Mo. 54; 68 C. J. 873.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

In this case an opinion was written and handed down and on appellants' motion a rehearing was granted and the case was again argued and submitted. In appellants' motion for rehearing but one ground was urged, viz., that this court, in its first opinion, did not discuss or decide a contention advanced by appellants in their brief, viz., that the judgment of the probate court, whose record they sought to have quashed (as will be hereinafter referred to), was void because not entered within one year after the first publication of notice of letters testamentary. This contention was disregarded in the former opinion because we then said it had not been sufficiently presented by appellants' abstract of record and brief. In so disposing of the point we were in error. We inadvertently overlooked certain statements made in appellants' abstract and brief. Upon our attention being called to such oversight by appellants' motion for rehearing a rehearing was granted to the end that said contention might be considered. It will be considered in paragraph II of the present opinion. The statement of facts and paragraphs I and III of the former opinion we think sufficiently and correctly dispose of the points discussed and decided. They will appear (without quote marks) as the statement of facts and paragraphs I and III of this opinion.

This is a proceeding in certiorari, commenced in the Circuit Court of Phelps County, whereby relators seek to quash the record of the probate court of that county, made and entered February 26, 1934, which confirmed, in term time, an order made by the judge thereof in vacation, admitting to probate the last will and testament of William Callahan, deceased. On the return day of the writ, the respondent judge filed a motion to quash, which the court sustained, and relators appealed.

"A motion to dismiss or quash the writ, being in the nature of a demurrer, may be filed and granted before the return has been made to the writ. A motion to dismiss or quash the writ for want of jurisdiction or right to relief prayed by the petition is in effect a demurrer, confessing all facts well pleaded, but searching the whole record and attacking the first fatal defect." [4 Houts Mo. Pl. & Pr., sec. 1400, p. 687, and cases cited.] The question for determination is, therefore, purely one of law.

Insofar as may be necessary for an understanding of the issues, the facts as pleaded by the relators are as follows: That they are nieces and nephews of William Callahan, late of Phelps County, who died on November 6, 1932; that on November 15, 1932, there was presented to the then Judge of Probate, in vacation, a paper-writing purporting to be the last will and testament of said Callahan, which, upon examination, and the testimony of the subscribing witnesses thereto in relation to the execution of the same, was adjudged and declared by said judge, in vacation, to be the last will and testament of said testator, and the same was ordered admitted to probate; that thereafter, on June 4, 1933, relators instituted a suit or proceeding to contest said will; that upon a trial of said will contest in the circuit court there was a judgment upon a directed verdict, in favor of the proponents of the will; that upon appeal to the Supreme Court, and in an opinion filed November 12, 1936, said judgment was reversed and the cause remanded with directions to dismiss the same for want of jurisdiction of the subject matter because there was no judgment in the probate court admitting the will to probate.

The petition further alleges that "while the will contest aforesaid was pending on appeal in the Supreme Court of Missouri and yet undetermined, parties to petitioners and relators unknown . . . did, on the 26th day of February, 1934, go into the Probate Court of Phelps County and without notice to these petitioners or their attorneys, and without warrant or authority in law . . . did then and there procure an entry of the records of said Probate Court . . . in the form of a judgment . . . the following to-wit:

"'Estate of William Callahan Dec'd. Probate of Will Confirmed. Now on this day it is ordered by the Court, that the Probate of the Will of William Callahan, heretofore made by the Judge in vacation, be in all things approved and confirmed.'"

It is further alleged that the relators "had no reason to suspect nor anticipate, that any such action would be taken on the part of or by said Probate Court of Phelps County, Missouri, at the time it was taken, nor at any other time while said cause was pending and undetermined in the Supreme Court."

I. The first proposition urged is that the confirmation order, which constitutes the probate court's...