State ex rel. Howe v. Hughes

• Citation: 123 S.W.2d 105,343 Mo. 827
• Decision Date: 20 December 1938
• Docket Number: 36145
• Parties: State of Missouri at the relation of A. Frank Howe, Relator, v. A. Evan Hughes, Judge of the Probate Court for the County of St. Louis
• Court: United States State Supreme Court of Missouri

123 S.W.2d 105

343 Mo. 827

State of Missouri at the relation of A. Frank Howe, Relator, v. A. Evan Hughes, Judge of the Probate Court for the County of St. Louis

No. 36145

Supreme Court of Missouri

December 20, 1938

Alternative writ quashed and peremptory writ denied.

Joseph T. Davis, Lawrence C. Kingsland, Robert Hensley and Bruce A. Campbell for relator.

(1) In a mandamus proceeding the respondent cannot file a motion to quash and at the same time his return. The motion to quash is waived. State ex inf. v. Kansas City Gas Co., 254 Mo. 515; State ex rel. v. County Court, 277 S.W. 934; State v. Jones, 8 S.W.2d 66; State v Cummins, 92 S.W.2d 605; Long v. Towl, 41 Mo 398; Taber v. Wilson, 34 Mo.App. 89; State v Reynolds, 178 S.W. 468; State v. Gordon, 233 Mo. 383. (2) In a mandamus proceeding a motion to quash performs the same function a demurrer does in an ordinary civil proceeding, and like a demurrer admits all facts well pleaded. State v. Darby, 64 S.W.2d 911; State ex rel. v. Haid, 38 S.W.2d 44; State v. County Court, 277 S.W. 934. (3) Rule 32 of this court has no application and is not grounds for quashing an alternative writ that has issued, but the court will, having once taken jurisdiction, proceed to determine the question presented. State ex rel. v. Brown, 48 S.W.2d 857; State v. Latshaw, 237 S.W. 770; State v. Nelson, 275 S.W. 927; State v. Pearcy, 29 S.W.2d 83; State ex rel. v. Mulloy, 52 S.W.2d 469; State v. School District, 74 S.W.2d 30. (4) Before the right to a writ of mandamus will be denied because relator has a remedy by appeal, the remedy by appeal must be as adequate, convenient, effective and speedy as that afforded by mandamus. 38 C. J., pp. 561, 567, secs. 32, 36; State ex rel. v. McCracken, 95 S.W.2d 1239; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. O'Bryan, 102 Mo. 254; State ex rel. v. Wilson, 297 S.W. 419; State v. Brown, 48 S.W.2d 857; Furniture Co. v. Craig, 160 Mo.App. 91; State ex rel. v. Reynolds, 121 Mo.App. 699. (5) In a mandamus proceeding a demand is not necessary, if the action of the officer shows that the demand would be unavailing, because the law does not require the performance of useless tasks. 38 C. J., p. 578, sec. 51; State ex rel. v. Wilson, 158 Mo.App. 105; Pugsley v. Sellmeyer, 30 A. L. R. 1212; United States v. Saunders, 124 F. 124. (6) According to the law of administration in this State, a probate court is without jurisdiction, while a claim is pending and undetermined, to order a partial distribution which will deplete the estate below the amount of the claim. Lewis v. Carson, 93 Mo. 587; Sec. 238, R. S. 1929; State v. Holtcamp, 181 S.W. 1007; Perkins v. Goddin, 111 Mo.App. 429; Steele v. Steele, 64 Ala. 438; Madison v. Buhl, 8 P.2d 271. (7) A claim is pending in an estate when an appeal is allowed from the order of the probate court dismissing the claim and said claim is not dismissed until the statutory time for appeal has elapsed and no appeal was allowed. Cuendet v. Henderson, 166 Mo. 657; Williams v. Williams, 30 S.W.2d 69.

Ethan A. H. Shepley and Frank Coffman for respondent.

(1) The jurisdiction of the probate court extends only to demands which are judgment, obligations due, and obligations surely to become due, and as such are subject to allowance, adjustment and classification under the provisions pointed out by the statute. Secs. 189, 190, 202, R. S. 1929. The relator's demand, based on the judgment of the United States District Court of Illinois, Southern Division, is not a provable and allowable demand against the estate of decedent because. (a) Said judgment is not a judgment obtained in the "ordinary course of proceeding" against the person or estate of decedent. Sec. 189, R. S. 1929. (b) A judgment obtained in a federal court situated outside of Missouri (even though decedent's estate, through her executor, were a party thereto) is not a judgment "obtained in the ordinary course of proceedings" against the estate of decedent. In re Estate of Thompson v. Coyle & Co., 97 S.W.2d 93, 339 Mo. 426. (2) The right which relator seeks to protect by mandamus is that right which he claims as a creditor of the estate of Minnie Morey Howard, deceased. 38 C. J., secs. 56, 57, pp. 582, 585-586; State ex rel. Ensworth v. Albin, 44 Mo. 349; State ex rel. Snyder v. Newman, 3 S.W. 849, 91 Mo. 451; State ex rel. Thomas v. Williams, 12 S.W. 905, 99 Mo. 303; State ex rel. v. Lesueur, 38 S.W. 325, 136 Mo. 459; Ex parte Ashcraft, 193 Mo.App. 488, 186 S.W. 533; State ex rel. v. Stone, 190 S.W. 601, 269 Mo. 343. (a) Relator has the affirmative to establish his ultimate right to the remedy he seeks. His right must be clearly established. The writ never issues if such right is doubtful. 38 C. J., secs. 56, 57, pp. 582, 585-586; State ex rel. v. Bridge Co., 103 S.W. 1052, 206 Mo. 134; State ex rel. Dolman v. Dickey, 280 Mo. 548, 219 S.W. 366; State ex rel. v. McIntosh, 103 S.W. 1078, 205 Mo. 610; State ex rel. v. Wilson, 139 S.W. 709, 158 Mo.App. 120; State ex inf. v. Kansas City Gas Co., 163 S.W. 854, 254 Mo. 532; State ex rel. v. Willow Springs, 183 S.W. 592; State ex rel. v. Hudson, 126 S.W. 733, 226 Mo. 265; State ex rel. v. Appling, 177 S.W. 751, 191 Mo.App. 592; State ex rel. Whitehead v. Wenom, 326 Mo. 361, 32 S.W.2d 63. (3) Even if it be said that relator may have a cause of action at some future time against decedent's estate, said claim shows that no part of it is due, and that it is not certain to become due in a definite sum at a definite time in the future and that its amount depends upon certain contingencies, and that it is not subject to adjustment, and therefore is no demand, and cannot be allowed as such against said estate. Sec. 202, R. S. 1929; 24 C. J., secs. 900, 947, pp. 293-325; Elms Realty Co. v. Wood, 225 S.W. 1004, 285 Mo. 136; Wilbur v. Wilbur, 201 S.W. 389; State ex rel. Patterson v. Tittmann, 54 Mo.App. 499; State ex rel. v. Tittmann, 35 S.W. 579, 134 Mo. 169; Binz v. Hyatt, 98 S.W. 637, 200 Mo. 309; City of Springfield v. Clement, 205 Mo.App. 125, 225 S.W. 124; Grigg v. Lively, 214 Mo.App. 481, 257 S.W. 188; Tenny v. Lasley, 80 Mo. 669. (a) So far as the decedent's estate is concerned, whatever relator's status is or whatever the amount of any potential claim may be are strictly creatures of equity jurisdiction, not cognizable in a court of probate. 38 C. J., sec. 58, p. 586; State ex rel. Shackelford, 172 S.W. 347, 263 Mo. 63; Jenkins v. Morrow, 110 S.W. 686, 131 Mo.App. 298; Johnston v. Grice, 199 S.W. 409, 272 Mo. 429; Dahlberg v. Fisse, 328 Mo. 221, 40 S.W.2d 609; Orr v. St. Louis Union Tr. Co., 291 Mo. 404, 236 S.W. 649; Mo. Lead M. & S. Co. v. Reinhard, 21 S.W. 488, 114 Mo. 232; Strong v. Crancer, 335 Mo. 1217, 76 S.W.2d 386. (4) And mandamus never issues to perform the office of an appeal or writ of error. 38 C. J., secs. 44, 99, pp. 570-572, 616-617; Ferris, Extraordinary Legal Remedies, sec. 299, pp. 401-402; State ex rel. Tate v. Sevier, 68 S.W.2d 50, 334 Mo. 780; State ex rel. v. Robinson, 165 S.W. 997, 257 Mo. 591; State ex rel. v. Thurman, 132 S.W. 1157, 232 Mo. 166; State ex rel. v. Hill, 272 Mo. 214, 198 S.W. 847; State v. Grimm, 178 S.W. 120; State ex rel. v. Fort, 79 S.W. 167, 180 Mo. 109; State ex rel. v. Mosman, 87 S.W. 75, 112 Mo.App. 550; State ex rel. v. Thornhill, 160 S.W. 558, 174 Mo.App. 475.

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

OPINION

COOLEY

This is an original proceeding for mandamus, instituted upon the petition of relator, A. Frank Howe, against the respondent, A. Evan Hughes, judge of the Probate Court of St. Louis County, to compel respondent to set aside an order of partial distribution made in an estate being administered in his court and to recall the property distributed pursuant to the order. Our alternative writ issued, commanding respondent to do those things or show cause why he should not do so. He has filed here a combined motion to quash the alternative writ and return thereto. Relator filed reply to the return. The motion to quash was by this court ordered taken with the case and will be so considered and disposed of.

From the pleadings the following uncontroverted facts appear:

Respondent is judge of the Probate Court of St. Louis County. In process of administration in his court is the estate of Minnie Morey Howard (whom we shall call the deceased), who died testate about February , 1937. She left a large estate. By her will she named her son and only heir (and beneficiary), Clarence H. Howard, Jr., sole executor, to act without bond. He qualified, without being required to give bond and has since been so acting. Letters of administration with will annexed were issued to him upon probate of the will, February , 1937. In April, 1937, relator herein filed in the probate court a claim for allowance against the estate of deceased for four million dollars "or in such amount as may be determined." (This will be more fully explained hereafter.) At the same time relator filed a motion to remove the executor. October 14, 1937, the executor filed motion to dismiss and strike from the files relator's said claim and his motion to remove the executor. After hearing arguments and considering briefs submitted by the parties, the probate court on April 18, 1938, sustained the executor's motion and dismissed relator's said claim. On April 20, 1938, relator duly perfected an appeal from the order or judgment of the probate court dismissing his claim to the Circuit Court of St. Louis County, where said appeal was pending and undetermined when this proceeding was instituted.

On April 20, 1938, the executor filed in the probate court his first report or settlement, and at the same time filed and presented a petition asking the court to order partial distribution of certain assets of the estate. The probate...