State ex rel. Latimer v. Gray

• Decision Date: 03 March 1903
• Citation: 72 S.W. 1081,100 Mo.App. 98
• Parties: STATE ex rel. ALBERT G. LATIMER, etc., Appellant, v. WILLIAM O. GRAY, Respondent
• Court: Missouri Court of Appeals

72 S.W. 1081

100 Mo.App. 98

STATE ex rel. ALBERT G. LATIMER, etc., Appellant, v. WILLIAM O. GRAY, Respondent

Court of Appeals of Missouri, St. Louis

March 3, 1903

Appeal from Pike Circuit Court.--Hon. David H. Eby, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

J. H Blair & Son for appellant.

(1) The affidavit charges that respondent had been counsel in some of the five exceptions filed to the settlement. It was unnecessary to specify which one or more. If he had assumed the attitude and responsibility of an attorney in any one of said issues, that disqualified him from sitting in the case as judge, and determining any matter in the settlement of the estate. In re Estate Albert, 80 Mo.App. 557. (2) The fourth special demurrer is without merit. The filing of the written objection deprived the probate court of further jurisdiction in the cause (sec. 1760, R. S. 1899) and it could do nothing but perform the ministerial duty of certifying the cause to the county or circuit court. Bennett v. McCoffey, 28 Mo.App. 220; State v Gonzhorn, 52 Mo.App. 220; State v. Clayton, 34 Mo.App. 563; 19 Am. and Eng. Ency. Law, page 834; In re Estate Albert, 80 Mo.App. 557.

J. D Hostetter and Geo. W. Emerson for respondent.

Section 1760, we contend, makes two conditions precedent to the objector's right to demand a certification of the case, viz.: first, the judge must in point of fact have been of counsel in the case before him, and second, objections in writing verified by affidavit must be filed. Both these conditions must concur in order to deprive him of jurisdiction.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

--Albert G. Latimer, the relator, is the administrator of the estate of Mary A. Latimer, deceased, the administration being in progress in the probate court of Pike county, Missouri, of which the respondent W. O. Gray was judge. Latimer filed his first annual settlement February 15, 1902, in said court, whereupon the residuary legatees of the will of the deceased, Mary A. Latimer, to-wit, Kate Monroe and Fanny Edwards, filed exceptions to said settlement, averring that the administrator had taken credit for $ 114.59 for commissions when he was entitled to only $ 12.72; that he had failed to charge himself with $ 350 paid him as administrator by George Schwegman; that he had failed to charge himself with $ 1,200, the price received for a piece of real estate sold to John E. Latimer; that he had failed to charge himself with interest on moneys of the estate which he had received; that he had used a portion of the money of the estate without accounting for interest on it and that he had failed to demand payment of accounts due the estate. The exceptions were set for hearing on May 19th following their filing, but prior to the hearing the administrator filed an objection, verified by affidavit, to Judge Gray's sitting at the hearing on the ground that he had been of counsel in some matters involved in the exceptions. Instead of certifying the exceptions to the circuit court, the probate judge overruled the objection to his sitting, heard the exceptions and sustained them to the extent of ordering that Latimer be charged on his settlement with the sum of $ 419.22 on account of the items excepted to.

After the objection to respondent's sitting was overruled, the relator took no further part in the hearing but applied to the circuit court of Pike county for an alternative writ of mandamus to compel the relator to vacate and annul his ruling on the exceptions and to certify the same to the circuit court for hearing and determination. An alternative writ was issued, both the writ and the petition stating the facts as they are stated above. Afterwards the respondent appeared in the circuit court and filed a motion to quash the alternative writ, for the reasons that neither the petition nor the writ alleged the respondent had been the counsel in the case which the relator objected to his hearing; that it was not alleged the respondent had been executor or administrator of the estate; that the affidavit did not state in what particular matters assigned as grounds of exception respondent had been counsel and whether or not he had been counsel in any of said matters was a question of fact which it was his duty to pass on and find in order to correctly rule on the relator's challenge of his right to sit. The motion to quash was sustained by the circuit court and the relator appealed.

The following statute bears on the point at issue and the interpretation to be put on the statute will determine how the point should be determined:

"The judge of probate, if otherwise qualified, may practice as an attorney and counselor at law in any of the courts of this State, except his own; but no judge of probate shall sit in a case in which he is interested, or in which he may have been counsel or a material witness, or related to either party, or in the determination of any cause or proceedings in the administration and settlement of any estate of which he is or has been executor, administrator, guardian or curator, when any party in interest shall object in writing, verified by affidavit; and when such objections are so made, such cause shall be certified to the county or circuit court, which court shall hear and determine the cause; and the clerk of the county or circuit court shall deliver to said probate court a full and complete transcript of the judgment, order or decree made in such cause, which shall be kept with the papers in said office pertaining to said cause," etc. R. S. 1899, sec. 1760.

This case has caused us no little perplexity, principally on the question of whether the probate judge, when an objection is made to his hearing a cause, or some proceeding connected with the administration of an...