State ex rel. Knisely v. Jones
| Decision Date | 27 April 1918 |
| Citation | 202 S.W. 1117,274 Mo. 374 |
| Parties | THE STATE ex rel. ELIZABETH C. KNISELY, Administratrix, v. WILLIAM T. JONES, Judge of Circuit Court |
| Court | Missouri Supreme Court |
Writ granted.
Morton Jourdan, E. P. Johnson, Edward C. Crow, Wilfley, McIntyre Nardin & Nelson and Collins, Barker & Britton for relator.
(1) Appeal by executor or administrator will not be allowed without bond when the interest of the executor or administrator is opposed or antagonistic to the interest of the estate. Secs. 292, 294, R. S. 1909; Potter v Todd, 73 Mo. 101. (2) Mandamus will not issue to control the judgment or discretion of an inferior court. Betts v Megown, 89 Mo. 156; State ex rel. v. Fort, 180 Mo. 97. (3) The jurisdiction of respondent is not determined from the class of case, but from the petition in the particular case involved. State ex rel. v. Barnett, 245 Mo. 115. (4) The issuance by the circuit court of the writ of mandamus in the instant case would be an interference with the discretion of the probate court as vested in it by the statutes, and prohibition is the appropriate remedy to prevent the exercise of such jurisdiction. Albright v Fisher, 164 Mo. 56; State ex rel. v. Gates, 190 Mo. 540; State ex rel. v. Grimm, 243 Mo. 667. (5) The absence of other adequate remedy is a proper consideration in application for writ of prohibition. State ex rel. v. Eby, 170 Mo. 526; Terminal Ry. v. Wear, 135 Mo. 257; State ex rel. v. Elkins, 130 Mo. 109.
Robt. L. McLaran for respondent.
(1) The writ of prohibition should not be permitted as a substitute for ordinary process for review or to try a case out of the forum where it is properly brought and within its jurisdiction. It should be presumed that the trial court will properly administer the law. State v. McQuillin, 260 Mo. 164; State v. Calvird, 191 S.W. 1079; State v. Duncan, 193 S.W. 950; State v. Gates, 190 Mo. 540; State v. Stobie, 194 Mo. 14; Cohen v. Webb, 192 S.W. 828. That the circuit court has jurisdiction in mandamus to direct a probate court or judge to allow an appeal in a case where the law gives a right of appeal is settled in Missouri. It is part of the "superintending control" over "probate courts," vested by the constitution (Art. 6, sec. 23) in the circuit courts. State v. Allen, 92 Mo. 20; State v. Collier, 62 Mo.App. 38. (2) We ask whether there are proper parties to the record in the Supreme Court, referring to the plea of defect of parties set up in the return? Relator in the Supreme Court is not a party to the circuit court proceedings. No party in either of those courts is a party in the other court. R. S. 1909, sec. 1732. (3) The mandamus alternative writ in the circuit court and its allegations are admitted; no return thereto is on file, and there is no room for evidence to contradict that writ. R. S. 1909, secs. 2093, 2546; State v. Kellerman, 76 Mo.App. 107; State v. Adams, 161 Mo. 349; Austen v. Court, 35 Mo. 198. (4) The law and the facts determining the right of the executrix to appeal, without giving a $ 200,000 bond to obtain that privilege, are subjects peculiarly within the circuit jurisdiction in the mandamus suit, and its discretion and power to decide thereon ought to be left to that court and not taken away by prohibition. State v. Klein, 116 Mo. 259; State v. Bowerman, 40 Mo.App. 576. (5) The merits of the mandamus are matters for the circuit court; but if they are to be gone into by this court, the probate order (made on the day before the time elapsed for the appeal) requiring of the executrix a $ 200,000 bond as a condition to the appeal, is claimed by counsel for the executrix to be beyond the sound discretion of the learned probate judge. The amount or settlement filed by the executrix, pursuant to Secs. 151-155, R. S. 1909, was part of the proceedings for the sale of real estate, and was appealable as such without bond. R. S. 1909, sec. 289; Wilson v. Brown, 21 Mo. 411; Tutt v. Boyer, 51 Mo. 425; Ferguson's Adm. v. Carson's Adm., 86 Mo. 673. (6) The appeal of the executrix was valid under the 2nd or the 6th or the 15th subdivisions of Section 289, the last including every "final decision of any matter arising under the provisions of Articles 1 to 13, inclusive of this chapter." In re McCune Est., 76 Mo. 200. (7) The appeal of the executrix from the total rejection of her account, submitted under Sec. 155, R. S. 1909, was an appeal which required no bond under the probate statute. One test is that no personal judgment against her was rendered, as the latter would have required an appeal bond for a supersedeas, under the last lines of Section 292. State v. Henderson, 164 Mo. 357; In re Bruening, 42 Mo. 278; Thompson v. Pope's Est., 77 Neb. 338; R. S. 1909, sec. 2042. (8) The probate law permits the executor to appeal without bond as a general rule, and the special exceptions (Sec. 292) do not include the case of a settlement under Section 155 which is not a "final settlement," specified in the exceptions in Section 292. (9) The express specification of "final settlement," in the clause of Section 292 requiring bond of an executor on appeal, excludes from such requirement other "settlements," on the executor's appeal; the same not being "final" in character. R. S. 1909, secs. 292, 2042. The rule of interpretation ejusdem generis forbids expanding the general words following "final settlement" so as to include other than final settlements. City v. Laughlin, 49 Mo. 559; State v. Harter, 188 Mo. 530; State v. Withrow, 133 Mo. 500; Bank v. Ripley, 161 Mo. 131; Wilson v. Brown, 21 Mo. 411; Ferguson v. Carson's Adm., 86 Mo. 673. (10) The probate appeal section permits appeals from (R. S. 1909, sec. 289): 2nd, "all settlements of executors and administrators;" 6th, "on all orders for the sale of real estate;" 15th, on "in all other cases where there shall be a final decision of any matter arising under the provisions' of the probate law. R. S. 1909, secs. 289, 2042; In re McCune Est., 76 Mo. 200. (11) But even if an appeal bond was demandable (which we deny) it should have been only a small one for costs, as no judgment or order for recovery of any sum by any one against the executrix was made or could be made in the matter in question, so the demand for a $ 200,000 bond was excessive and should be vacated by mandamus as unwarranted and beyond discretionary power. State v. Court, 41 Mo. 545; State v. Lewis, 71 Mo. 170; State v. Court, 41 Mo. 221; State v. Cook, 187 S.W. 1122; State v. Goebel, 1 Ohio Cir. Ct. R. 550; Church v. U.S. 13 App. Cas. (D. C.) 264; State v. Wofford, 121 Mo. 61. As to the use of mandamus to revise and confine the exercise of discretion within reasonable limits, see: State v. Adcock, 206 Mo. 550; State v. Court, 41 Mo. 560; State v. Holtcamp, 207 Mo. 412; State v. Homer, 249 Mo. 68. (12) Although a bond may be required, and is within the jurisdiction or discretion of a court or judge, a demand by the latter for a bond excessive in amount is not a proper exercise, but is an abuse, of discretion, and may be controlled by mandamus. (13) Mandamus is available to enforce allowance of an appeal from an appealable order or judgment of a court or Judge, if the appeal being conferred by statute is refused by that court or judge. State v. Allen, 92 Mo. 25; State v. Collier, 62 Mo.App. 38; State v. Lewis, 71 Mo. 170.
OPINION
In Banc.
Prohibition.
Application for writ of prohibition. Pleadings and facts can well be stated together.
The main features of the present application for a writ of prohibition are not strangers to this court. In one form or another the case of Knisely, Admx., v. Leathe, Admx., has been before us for many years. It first appeared in Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257. Finally a judgment was directed in favor of plaintiff and against defendant in the sum of $ 107,500 and interest from May 17, 1902. The circuit court entered judgment under our direction and certified it to the probate court for allowance. The probate court declined jurisdiction of the claim so certified to it, and by our writ of mandamus we compelled the probate court to set aside, or hold as naught, an alleged final settlement of the Leathe estate, and to allow the claim of Knisely, Administratrix, against the Leathe estate. [State ex rel. v. Holtcamp, 266 Mo. 347, 181 S.W. 1007.]
Whilst there were other side issues of the Knisely-Leathe case in this court, they are immaterial here. The present case, in its facts, begins with the probating of the Knisely judgment. The claim was classified by the probate court March 14, 1916. The relatrix in this action then filed her petition for the sale of real estate, to the end that her claim might be paid. The petition for our writ then charges the further facts Relator further shows to the court that Grace A. Leathe, as executrix of the estate of Samuel H. Leathe, deceased, on the 7th day of July, 1909, made a pretended final settlement of her administration of the said estate of the said Samuel H. Leathe in the probate court; that on said 7th day of July, 1909, an order was entered on the records of the probate court of the city of St. Louis, Missouri, discharging the said Grace A. Leathe as executrix of the said estate of Samuel H. Leathe, deceased; that at the time of making the said report and final settlement, the said Grace A. Leathe showed to the court that there was no personal property belonging to the estate of Samuel H. Leathe in her possession, and that she was the sole residuary legatee under the will of Samuel H. Leathe, and, since the death of Samuel H. Leathe, had been in possession of all of the real estate which had belonged to the said Samuel H. Leathe at the time of his death....
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