State ex rel. Holtkamp v. Hartmann.
| Decision Date | 16 May 1932 |
| Docket Number | No. 31755.,No. 31754.,31754.,31755. |
| Parties | STATE OF MISSOURI at the Relation of CHARLES W. HOLTKAMP, Judge of the Probate Court of the City of St. Louis, Relator, v. MOSES N. HARTMANN, Judge of the Circuit Court of the City of St. Louis, now presiding in Division No. 1, and formerly and until January 1, 1932, presiding in Division No. 3 of said Court; and ROBERT W. HALL, Judge of the Circuit Court of the City of St. Louis, now presiding in Division No. 3 of said Court. |
| Court | Missouri Supreme Court |
Robert B. Denny, Wurdeman, Stevens & Hoester and Joseph A. Falzone for respondents; R. Shad Bennett of counsel.
(1) A writ of prohibition will never issue at the instance of one who has no interest in the cause sought to be prohibited. State ex rel. v. Duncan, 26 S.W. (2d) 681; State ex rel. v. Wurdeman, 286 Mo. 160; State ex rel. v. Dickman, 157 S.W. 1012; State ex rel. v. Holtcamp, 235 Mo. 232; Hunt v. Searcy, 167 Mo. 158. The record of this case shows that the relators are nothing more than distant relatives and heirs apparent. (2) Prohibition will not lie in a superior court unless some effort has been vainly made in the inferior tribunal to obtain the same relief sought by the prohibition proceedings. State ex rel. Brancie v. Huck, 296 Mo. 374. (3) The Probate Court of St. Louis County, Missouri, has exclusive jurisdiction of insanity proceedings of persons within and residents of said county. R.S. 1929, sec. 448. And, (a) The probate court is the sole judge of its jurisdiction. State ex rel. Holthaus v. Holtcamp, 218 Mo. App. 440; State ex rel. v. Duncan, 195 Mo. App. 541; Baker v. Smith's Estate, 18 S.W. (2d) 147. And, (b) If the probate court has jurisdiction it cannot be prohibited from making an erroneous ruling. State ex rel. Deems v. Holtcamp, 245 Mo. 655. And, (c) If the trial court has jurisdiction of the subject-matter, and jurisdiction of the person depends on facts to be determined by the trial court, its determination and ruling that it has jurisdiction of the person is at most error, for which prohibition will not lie. State ex rel. v. Johnson, 293 Mo. 302; State ex rel. v. Calvird, 195 Mo. App. 354. And, (d) It is to be presumed that the trial court inquired into all features essential to the establishment or determination of its jurisdiction and a writ of prohibition will not lie to root up and invalidate such decisions which can be reached only by appeal or error. State ex rel. v. Mills, 231 Mo. 493. And, (e) The refusal of a jury trial is, at most, error, which constitutes no ground for prohibition. Delaney v. K.C. Police Court, 167 Mo. 667. And, (f) A notice of insanity as provided by statute is unnecessary where the party is in court in person, or by counsel, or both. Crow v. Meyersick, 88 Mo. 411; State ex rel. v. Williams, 316 Mo. 665; Ruckert v. Moore, 317 Mo. 228. And, (g) The judgment of the probate court cannot be vitiated or nullified by collateral attack, because the record makes no affirmative showing of service of notice. Herman v. Bank, 291 S.W. 156. (4) The circuit court has jurisdiction of an appeal from an inquiry de lunatico in the probate court. Where an appeal from probate court is properly before the circuit court prohibition will not lie. State ex rel. Russel v. Mueller, 39 S.W. (2d) 1076. (5) Which cause is now before this court on certification arising from divided opinion of the St. Louis Court of Appeals. Where adequate relief is afforded by appeal or error prohibition will not lie. State ex rel. v. Shelton, 238 Mo. 281. And mere delay of the appeals is not sufficient to invoke the remedy. In this cause relators, as wife and sisters-in-law of the appellant, "reputable citizen," are afforded full and complete remedy by a trial de novo before a court that has jurisdiction of the parties and of the subject-matter and nisi prius powers and facilities for hearing any evidence relative to any of the allegations made in this court, or pertinent to the inquiries. (6) The probate courts of Missouri are courts of exclusive jurisdiction and their judgments are entitled to the same presumptions of validity as are accorded courts of general jurisdiction. Norton v. Reid, 253 Mo. 236; Henry v. McKerlie, 78 Mo. 429; State ex rel. v. Dickman, 175 Mo. App. 543. Unless the judgment is void on its face, it cannot be successfully attacked in a collateral proceeding. Cases supra; In re Grimley, 137 U.S. 147; Sisk v. Wilkinson, 305 Mo. 328. (7) A circuit court has power and authority to correct its own records to make them speak the truth at any subsequent term, or even after an appeal has been taken. State ex rel. v. Ellison, 277 Mo. 294. And, (a) The only requirement is that a monument or memorandum exist in the minute book or the judge's docket, on which to base a nunc pro tunc order. Lindsey v. Nagel, 157 Mo. App. 128; Shephard v. Greer, 160 Mo. App. 613; Tholen v. Neidemeyer, 185 Mo. App. 250; Osagera v. Schaff, 293 Mo. 333. And, (b) The judge, at a subsequent term, may correct his record which falsely recites by inadvertent entry that a motion for a new trial was filed on the day of the rendition of verdict, when the record was that the cause was, after the rendition of the verdict, continued for the term. York v. Stigall, 204 Mo. 407. Or, as in this case, correct the record when the minutes show that the cause had been continued for trial at a date subsequent to the inadvertent order and entry denying the writ. (8) Prohibition will not lie to correct the erroneous entry of an order nunc pro tunc. State ex rel. v. Ellison, 277 Mo. 294. For, the remedy is by appeal or error.
Two proceedings seeking by prohibition in this court to stop prohibition proceedings in the Circuit Court of the City of St. Louis in which latter it is sought to prevent the Probate Court of the City of St. Louis from entertaining inquiries as to the sanity of Hugh W. Thomasson.
Elmira Townsend, October 7, 1931, filed a petition in the Probate Court of the City of St. Louis under Section 448, Revised Statutes 1929, alleging that she was next of kin to Hugh W. Thomasson, that he was of unsound mind, a resident of the city of St. Louis, and praying said probate court to inquire as to his sanity.
October 20, 1931, Charlotte Louise Welborn filed in said probate court a petition with like allegations except an averment that Thomasson was a nonresident, under Section 503, Revised Statutes 1929, praying the same inquiry. Both of these cases still are pending in that probate court.
Thomasson, February 12, 1931, filed in the Circuit Court of the City of St. Louis two petitions, in each of which a preliminary rule was issued, seeking to prohibit Judge Holtkamp, of the Probate Court of the City of St. Louis from proceeding with those inquiries. Judge HARTMANN was then presiding in Division 3, to which the cases were assigned, of the Circuit Court of the City of St. Louis. Subsequently Judge ROBERT W. HALL was assigned to that Division.
Judge Charles W. Holcamp, January 26, 1932, filed in this court two petitions seeking to prohibit Judge HARTMANN and Judge HALL from proceeding further in the said circuit court with those prohibition cases — the one aimed at the proceeding to prohibit the inquiry begun on information of Elmira Townsend is Case No. 31,755 and the one directed at the proceeding to prohibit the inquiry started on the information filed by Charlotte Louise Welborn in Case No. 31,754.
It is stipulated that the abstract of the record in Case No. 31,754 shall be taken for and in lieu of the record in Case No. 31,755. The two cases are presented as one.
The petition in each case alleged the proceedings begun in the Probate Court of the City of St. Louis, the proceeding begun by Thomasson in the St. Louis Circuit Court to prohibit the inquiry, that the preliminary rule in prohibition was issued by the said circuit court; that the relator here, Holtkamp, respondent there, November 18, 1931, filed in that court his return to the preliminary rule; that relator therein, Thomasson, filed a demurrer to the return of respondent Holtkamp; that said demurrer, November 30, 1931, at the September term of said co...
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