State ex rel. Fleming v. Shackelford

• Decision Date: 31 December 1914
• Citation: 172 S.W. 347,263 Mo. 52
• Parties: THE STATE ex rel. ALFRED W. FLEMING, v. ROBERT L. SHACKELFORD, Judge of Probate
• Court: Missouri Supreme Court

172 S.W. 347

263 Mo. 52

THE STATE ex rel. ALFRED W. FLEMING, v. ROBERT L. SHACKELFORD, Judge of Probate

Supreme Court of Missouri

December 31, 1914

Writ issued.

Leahy Saunders & Barth and John B. Reno for relator.

(1) Mandamus is the only available remedy. (a) There is no statutory authority for an appeal. A refusal to make an order of distribution is not "a final order or judgment of the probate court" from which an appeal may be taken. Sec 463, R. S. 1909, assimilates appeals in cases of administration of the estates of minors and the estates of deceased persons. And the section controlling appeals in the administration of decedents' estates (Sec. 289, R. S 1909) gives no right of appeal in cases analogous to the one at bar. State v. Fowler, 108 Mo. 465; State ex rel. v. Guinotte, 113 Mo.App. 399; Flick v Schenk, 212 Mo. 275; Marshall v. Estate of Shoemaker, 164 Mo.App. 429. Ordinarily an appeal is not open where the action of the court is purely negative. 2 Woerner, Administration (2 Ed.), sec. 545. (b) In any event, it is well established that mandamus is the only proper remedy where a "court refuses to proceed with a case, because the court was of opinion that it did not have jurisdiction," and, further, that "a dismissal on the ground of the want of jurisdiction is not such an assumption of jurisdiction as to require its review by appellate proceedings." State ex rel. v. Homer, 249 Mo. 64; State ex rel. v. McElhinney, 246 Mo. 56; State ex rel. v. Broaddus, 239 Mo. 359; State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. O'Bryan, 102 Mo. 259; State ex rel. v. Philips, 97 Mo. 331; Castello v. Circuit Court, 28 Mo. 274; State ex rel. v. Reynolds, 121 Mo.App. 711. (2) A peremptory writ of mandamus should be awarded. (a) It is settled that while probate courts are not invested with independent equity jurisdiction, nevertheless they have such extensive inherent equity powers in the administration of estates as to make their jurisdiction in so far practically exclusive. "The circuit courts of this State have no jurisdiction whatsoever in matters pertaining to probate business, except in rare instances. The jurisdiction over all such matters is given to the probate courts by the Constitution and laws of this State." Constitution, art. 6, sec. 34; Sec. 4056, R. S. 1909; Meeker v. Straat, 38 Mo.App. 244; In re Ford, 157 Mo.App. 152; Pearce v. Calhoun, 59 Mo. 274; Titterington v. Hooker, 58 Mo. 593; In re Estate of Elliott, 98 Mo. 384; Scott v. Royston, 223 Mo. 568; Matson & May v. Pearson, 121 Mo.App. 120; Lietman v. Lietman, 149 Mo. 112; Brewer v. Cary, 148 Mo.App. 193. (b) Clearly, questions relative to the transfer of assets shown to be on hand by the curator's final settlement are matters essentially "pertaining to probate business." Yoeman v. Younger, 83 Mo. 424; Bombeck v. Bombeck, 18 Mo.App. 26; State ex rel. v. Greer, 101 Mo.App. 675. (c) It follows that in the case at bar the probate court had jurisdiction to order to the ward, upon his attaining majority, a transfer of such a portion of the undisputed assets, shown by the curator in its final settlement to be due, as the court in its judicial discretion might deem proper.

T. K. Skinker and Thomas H. Sprinkle for respondent.

(1) This court has no power to grant a writ of mandamus in this case, because the respondent, acting in his judicial capacity as judge of the probate court, has decided relator's motion on the ground that pending a final settlement with exceptions filed, he has no power to make such an order. State ex rel. v. Riley, 219 Mo. 667; State ex rel. v. Neville, 110 Mo. 345; State ex rel. v. Fort, 180 Mo. 108; State ex rel. v. Megown, 89 Mo. 156; State ex rel. v. Grimm, 220 Mo. 483; R. S. 1909, sec. 456. (2) Respondent had no power under the statute to order a partial payment. R. S. 1909, secs. 456, 458, 459; State ex rel. v. Fowler, 108 Mo. 465; State ex rel. v. Bird, 253 Mo. 569, 579; R. S. 1909, secs. 222, 238, 458. (3) The peremptory writ should not be issued, because it would violate the rule against splitting causes of action. Pomeroy's Code Remedies (4 Ed.), p. 470; Donnell v. Wright, 147 Mo. 646; Bank v. Tracey, 141 Mo. 258; Phillips v. Laclede County, 76 Mo. 69; Union R. & T. Co. v. Traube, 59 Mo. 362; Wagner v. Jacoby, 26 Mo. 532; Pfeiffer v. Suss, 73 Mo. 245; Hoffman v. Hoffman's Executor, 126 Mo. 497. (4) The peremptory writ should not be issued because it would accomplish nothing. High on Extraordinary Legal Remedies, secs. 14, 548; State ex rel. v. Railroad, 77 Mo. 143; State ex rel. v. Halladay, 65 Mo. 76. (5) It should not be issued because no demand was ever made upon respondent for the relief now sought. State ex rel. v. LeSeuer, 136 Mo. 459; State ex rel. v. Associated Press, 159 Mo. 421; Abbott v. Adcock, 225 Mo. 363. (6) The fact that the prayer of relator is in the alternative is fatal to his claim for relief. School District v. Lauderbaugh, 80 Mo. 194; State ex rel. v. Hudson, 226 Mo. 265. (7) The fact that there is no appeal from Judge Shackelford's decision does not confer upon relator the right to proceed by mandamus. Millar v. Transit Co., 216 Mo. 103; Barnes v. Construction Co., 165 S.W. 728; State ex rel. v. Neville, 110 Mo. 349; State ex rel. v. Bates, 235 Mo. 282.

OPINION

In Banc

Mandamus.

GRAVES J.

-- Original action in mandamus. The facts are few and simple, as we gather them from the record before us. The Trust Company of St. Louis County, a corporation, was and is curator of the estate of Alfred W. Fleming, in the probate court of St. Louis county. In September, 1913, the said Fleming attained his majority. At the November term of said probate court following the date at which Fleming reached his majority said Trust Company filed its statement of accounts for final settlement, by which it was shown that the Trust Company was indebted to its ward in a sum exceeding $ 107,000. Later a supplemental statement was filed showing that the curator had paid its ward some more money and showing a balance of $ 102,000 and over. Fleming, the ward, promptly filed exceptions to this settlement, and those exceptions are still pending and undisposed of at this time. With these exceptions pending, Fleming through his counsel filed in the probate court a motion, the purpose of which was to have that court to direct his curator, the Trust Company, to pay to him all of the said $ 107,000, except such sum as the court should deem sufficient to cover all costs and expenses of litigating the pending exceptions to the final settlement of the said curator. When this application or motion of Fleming came to be heard, the probate court thus disposed of it:

"Now on this day the petition of Alfred W. Fleming, heretofore filed and presented to the court, praying for an order of distribution of the funds belonging to him in the possession of the Trust Company of St. Louis County, his curator, coming on for final consideration and determination; and the court having seen and heard said petition and the evidence adduced and argument of counsel for and against said petition, the court doth find that said petitioner, Alfred W. Fleming, has arrived at the age of majority.

"As the court further finds, said curator has filed in this court its final settlement in the estate of said petitioner, showing a large amount of assets in its possession belonging to said estate; and the court further finds that said final settlement is now pending before the court and has not been considered or approved.

"The court further finds that it has no jurisdiction to make an order of distribution of said estate, or any part thereof at this time. It is therefore ordered that said petition be and the same is hereby overruled and denied."

After the issuance of our alternative writ the said Fleming again presented his petition for a partial distribution, and the court again refused it by an entry in the following language:

"Now on this day comes on to be heard the petition of Alfred W. Fleming, filed herein on the 16th day of June, 1914, again praying for an order directing the payment to him by the Trust Company of St. Louis County, curator of his estate, of a sum of money designated as $ 107,157.35, less such amount as may be necessary to defray any expenses reasonably incurred by the said Turst Company in the defense of pending exceptions, and it appearing to the court that such sum constitutes but a part of the estate claimed by said Fleming to be due to him from the said Trust Company; that there is on file in the court an account offered by said Trust Company for the final settlement of said estate, and that exceptions to said account were filed by said Fleming on the 5th day of January, 1914, alleging that other large sums of money are due to him from said Trust Company aside from the balance shown by said account to be on hand; and it appearing that said exceptions remain unheard and undetermined; and the court being of opinion that until said exceptions are determined and the full and true amount due from said Trust Company as curator to petitioner is ascertained, the court has no power to order the said Trust Company as curator to make any payment to petitioner, the said petition is for that reason denied."

These facts we gather from the return. The case stands here on a motion for judgment upon the pleadings. In such case the facts of the return are the facts of the case here, in so far as they controvert the allegations of the petition.

From the record it is not disputed that the curator owes the ward at least $ 102,000. Under these facts should the probate court be directed by mandamus to consider the question of ordering a partial distribution of the estate? This is...