State ex rel. Damon v. McQuillin

• Decision Date: 21 December 1912
• Parties: THE STATE ex rel. ROSA E. DAMON and HARRY F. EWALD v. EUGENE McQUILLIN, Judge
• Court: Missouri Supreme Court

152 S.W. 341

246 Mo. 674

THE STATE ex rel. ROSA E. DAMON and HARRY F. EWALD v. EUGENE McQUILLIN, Judge

Supreme Court of Missouri

December 21, 1912

Writ denied.

Joseph A. Wright and S. T. G. Smith for relators.

(1) Will contest in Missouri is a proceeding in rem and cannot be dismissed. Teckenbrock v. McLaughlin, 209 Mo. 538; Bradford v. Blossom, 207 Mo. 227; Cowan v Shaver, 197 Mo. 212; Hogan v. Hinchey, 195 Mo 532; Cash v. Lust, 142 Mo. 637; McMahon v McMahon, 100 Mo. 99; Hughes v. Burriss, 85 Mo 665; Harris v. Hays, 53 Mo. 96; Benoist v. Murrin, 48 Mo. 52; Dickey v. Malechi, 6 Mo. 182. (2) The rule announced by the Supreme Court of Missouri is the uniform rule both in the United States and England. Hutson v. Sawyer, 104 N.C. 1; Collins v. Collins, 125 N.C. 98; Carolan v. O'Donnell, 141 App.Div. (N.Y.) 463; Sly v. Hunt, 159 Mass. 151; Farrell v. O'Brien, 199 U.S. 89; Higgins v. Eaton, 188 F. 938; Goodrich v. Ferris, 145 F. 844; Ballantyne v. Mackinnon, 65 L.J.Q.B. 616-621; Concha v. Concha, 11 App. Cas. 541-72, 11 Eng. Rul. Cas. 22. (3) The entry of March 17, 1910, is not a dismissal of the suit. 14 Cyc. 395; 6 Ency. Pl. & Pr. 872; Wagon Co. v. Cornell, 131 Mo.App. 344; Wooten v. Manning, 11 Tex. 327; Boren v. Billington, 82 Tex. 137; Barnes v. Barnes, 95 Cal. 171. (4) Relators have a joint and common interest in the will contest, and therefore have properly joined in the petition for mandamus. 13 Pl. & Pr. 645; 26 Cyc. 408; State ex rel. Punch v. Kortjohn, 246 Mo. 34; Independent District v. Rhodes, 88 Iowa 570; State ex rel. v. Terminal Co., 41 Fla. 377; State ex rel. v. Mount, 151 Ind. 679; Lehman v. Pettingill, 39 Col. 258; People v. Ontario County, 85 N.Y. 323; Payne v. Staunton, 55 W.Va. 202; Thompson v. Ferris Dr. Dist., 116 F. 769. (5) Adoption as against the heirs by blood is an affirmative defense and should now be pleaded as a defense to be available as against the amended petition. Hockaday v. Lynn, 200 Mo. 456; Steele v. Steele, 161 Mo. 566; Clarkson v. Hatton, 143 Mo. 47; Reiners v. Koppelman, 94 Mo. 338; Morgan v. Reel, 213 Pa. St. 81; Albring v. Ward, 137 Mich. 352; Keegan v. Geraghty, 101 Ill. 26. (6) Should defendant, or any of them, set up the adoption of the minor children made beneficiaries in the alleged will, then plaintiff can plead the institution of suit in Louisville, Ky., to set aside the alleged adoption, and the circuit court of St. Louis should stay proceedings in the will contest until the direct attack upon the alleged adoptions is finally adjudicated. This would accord with the practice in similar cases from other jurisdictions. Rogers' Estate, 154 Pa. St. 217; Taylor v. Commonwealth, 13 Weekly Notes of Cases (Pa.), 378; Pattee v. Stetson, 170 Mass. 93; McCutchen v. Loggins, 109 Ala. 457; Kostelecky v. Scherhart, 99 Iowa 120. (7) Mandamus is the proper remedy where plaintiff's petition has been stricken from the files. State ex rel. v. Grimm, 220 Mo. 489; State ex rel. v. Neville, 157 Mo. 394; State ex rel. v. O'Bryan, 102 Mo. 254. (8) A decree of adoption of a foreign State may be assailed collaterally or directly, or both ways. The original petition contesting the will made a direct and positive attack upon the will itself, and also a well-grounded and valid attack on the decrees of the Kentucky court, and is properly cognizable in the circuit court of the city of St. Louis. The following grounds are assigned for this motion: First. That the opinion is in direct conflict with the decisions of the Supreme Court of the United States, in that it gives greater weight and credit to the decrees of the Kentucky courts than the United States Supreme Court has ever required or approved. Thompson v. Whitman, 18 Wall. 457; Cole v. Cunningham, 133 U.S. 112; Grover & Baker Co. v. Radcliffe, 137 U.S. 295; Simmons v. Saul, 138 U.S. 448; Thormann v. Frame, 176 U.S. 356; Andrews v. Andrews, 188 U.S. 14; Bank v. Wiley, 195 U.S. 269; Haddock v. Haddock, 201 U.S. 562; Tilt v. Kelsey, 207 U.S. 43; Brown v. Fletcher's Estate, 210 U.S. 82. Second. The opinion is in conflict with the uniform decisions on conflict of laws, in that (a) domicile and residence of adopting father in the state of adoption is absolutely necessary to give any validity whatever to the adoption; (b) the original petition alleged Louis P. Ewald to be a resident of Missouri, and never having been a resident of Kentucky, therefore the alleged adoptions are absolutely void and not binding on the Missouri courts, even though never assailed in Kentucky; (c) a decree of adoption has no extraterritorial effect unless it affirmatively appears that every essential requirement of the statute has been complied with, and its recognition then is only a matter of comity, so far as property rights are concerned. Irving v. Ford, 183 Mass. 448, 65 L.R.A. 177 and notes; Davis v. McGraw, 206 Mass. 295; Foster v. Waterman, 124 Mass. 592; Renz v. Drury, 57 Kan. 84; Furgeson v. Jones, 17 Ore. 204; Blythe v. Ayres, 96 Cal. 532; McCreery v. Davis, 44 S.C. 195; Tyler v. Reynolds, 53 Iowa 146; Smith v. Derr, 34 Pa. 126; Keegan v. Geraghty, 101 Ill. 26. Third. The opinion is in direct conflict with the decision on adoption by the Supreme Court of Missouri, Sarazin v. Union Depot Ry. Co., 153 Mo. 485, which held that "one who claims that such a change occurred must show that every requirement of the statute has been strictly complied with." Fourth. The decision gives greater rights to these children than accorded these same children in their domicile, to-wit, Kentucky, in that these children take there-under all of the Missouri property, while if he was a resident of Missouri, as alleged in the original petition, they can take none of the Kentucky estate, (1) because Kentucky statutes, Sec. 2071, required Louis P. Ewald to file these petitions for adoption "in the circuit court of the county of his residence"; (2) because under the decision of the Kentucky Court of Appeals, Leonard v. Braswell, 99 Ky. 528, as pointed out in note to 65 L.R.A. 177, "the law of the deceased's domicile governs so far as the status of the child affects his right to share in the distribution of personal property." Fifth. The decision is in conflict with the decisions of the Supreme Court of Missouri, in that it gives sanctity to a foreign decree heretofore never recognized in Missouri. Napton v. Leaton, 71 Mo. 359; Bradley v. Welch, 100 Mo. 268.

Stewart, Bryan & Williams for respondent.

(1) After the case of Damon v. Trust Company was dismissed, all the parties to that cause were out of court, and no further proceedings therein were authorized, and the action of the respondent in striking out the so-called amended petition, and in refusing to otherwise proceed with such cause after it had been dismissed and the term had expired, was right. Davis v. Hall, 90 Mo. 659; 14 Cyc. 458; Greeley v. Winsor, 3 S. Dak. 138; Black on Judgments (2 Ed.), Sec. 27; Freeman on Judgments (4 Ed.), Sec. 17; Bowie v. Kansas City, 51 Mo. 454. (2) A suit to contest a will is one to determine the rights of the parties to the suit, and no other rights whatever, and, like any other suit, may be dismissed by plaintiff unless defendants object thereto, and, like any other suit, it may be dismissed after demurrer to the plaintiff's pleading therein has been sustained. In re Lasak, 131 N.Y. 624; Crow v. Blakley, 31 Ala. 728; Whitfield v. Hurst, 9 Iredell, 175; Thurston v. Gough, 42 N.J.Eq. 346; Stone v. Cook, 179 Mo. 534; Gordon v. Burress, 125 Mo. 39; Lilly v. Tobbein, 103 Mo. 477; Church v. Tobbein, 82 Mo. 418. (3) The dismissal of the case under consideration (Damon v. Trust Company) was in fact proper both in substance and in form. State ex rel. v. Thurman, 232 Mo. 130; Bowie v. Kansas City, 51 Mo. 454; Black v. Rogers, 75 Mo. 441. The return of respondent to the alternative writ of mandamus in this case sets forth clearly that the case of Damon v. Trust Company had been dismissed on March 17, 1910. The relators' demurrer to the return necessarily admits its truth, and under the pleadings in this cause as they now are, the dismissal of said cause on the date mentioned is conceded by relators. State ex rel. v. Neville, 110 Mo. 345; State ex rel. v. Smith, 104 Mo. 661. (4) The law is well settled in this State that an appeal will lie from an order dismissing a cause. State ex rel. v. Thurman, 232 Mo. 130; Bowie v. Kansas City, 51 Mo. 454; Williams v. Judge of Common Pleas, 27 Mo. 225; State ex rel. v. Homer, 150 Mo.App. 325; Crane v. Hawley, 54 Mo.App. 603. (5) The writ of mandamus cannot be made to perform or usurp the functions of an appeal or writ of error. The fact that the relators, by neglecting to appeal from the dismissal of the cause of Damon v. Trust Company, have placed themselves in such a position that they can no longer avail themselves of that right, does not remove this case from the application of the rule, and constitutes no ground for interference by mandamus. State ex rel. v. McKee, 150 Mo. 233; State ex rel. v. Thurman, 232 Mo. 130; State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Homer, 150 Mo.App. 325. (6) A writ of mandamus is not one of right, but on the contrary its issue is discretionary with the court. State ex rel. v. Homer, 150 Mo.App. 325.

FERRISS, J. Kennish, J., and Woodson, J., not sitting. Dissenting opinion of Kennish, J., not yet filed.

OPINION

In Banc.

Mandamus.

FERRISS J.

-- Petition for mandamus against respondent, directing him to permit the filing of an amended petition in the case of Rosa E. Damon against the Columbia Trust Company and others.

In March, 1905, Louis Ewald made his last will, in which he described himself as "Louis Phillip Ewald, of the city of Louisville, in the State of Kentucky." The will gives the bulk of his very large estate to the Fidelity...