State ex rel. Lipic v. Flynn

• Decision Date: 13 December 1948
• Docket Number: 40987
• Citation: 215 S.W.2d 446,358 Mo. 429
• Parties: State of Missouri at the Relation of Joseph Lipic, Jr., and Emil Lipic, as Executors of the Will and Estate of Joseph Lipic, Sr., Deceased, Relators, v. Honorable William B. Flynn as Judge of the Circuit Court of the Eighth Judicial Circuit of Missouri, Respondent
• Court: Missouri Supreme Court

215 S.W.2d 446

358 Mo. 429

State of Missouri at the Relation of Joseph Lipic, Jr., and Emil Lipic, as Executors of the Will and Estate of Joseph Lipic, Sr., Deceased, Relators, v. Honorable William B. Flynn as Judge of the Circuit Court of the Eighth Judicial Circuit of Missouri, Respondent

No. 40987

Supreme Court of Missouri

December 13, 1948

Original Proceeding in Prohibition.

Preliminary rule made absolute.

Charles A. Neumann and William Kohn for relators.

(1) The issue of whether or not Mr. Lipic had wrongfully misappropriated assets of Mrs. Lipic's estate was one which the probate court had exclusive jurisdiction to determine. The circuit court was therefore without jurisdiction. State ex rel. Nute v. Bruce, 334 Mo 1107, 70 S.W.2d 854; Davis v. Johnson, 332 Mo. 417 58 S.W.2d 746; Kerwin v. Kerwin, 204 S.W. 922; State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909; Lemp Brewing Co. v. Steckman, 180 Mo.App. 320, 168 S.W. 226; Beck v. Hall, 211 S.W. 127. (2) The probate court has jurisdiction to determine the issue tendered in the circuit court case and to enter the identical judgment the latter court was asked to render. Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746; Newell v. Kern, 218 S.W. 443. (3) Having been first invoked, the probate court became vested with exclusive jurisdiction over the subject-matter of the action, namely, the promissory notes, check and cash. Any other court attempting to interfere exceeds its jurisdiction in the particular case "and is amenable to prohibition although it may have general jurisdiction over the subject-matter and parties." State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 14 Ann. Cas. 198, 15 L.R.A. (N.S.) 993, 123 Am. St. Rep. 468; State ex rel. Burtrum v. Smith, 206 S.W.2d 558; State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8; O'Malley v. Lamb, 342 Mo. 171, 113 S.W.2d 810; Way v. Coca-Cola Bottling Co., 29 S.W.2d 1067; 42 Am. Jur., sec. 24, pp. 161, 162; 21 C.J.S., sec. 492, p. 745. (4) Relators are being unnecessarily subjected to a multiplicity of actions and are in jeopardy of two conflicting judgments being rendered against them on the same issue, involving the same subject-matter, by two different courts. Under the circumstances here, appeal would not be an adequate remedy. We rely on the rule that if the remedy by appeal is inadequate or not sufficiently speedy, prohibition will not be denied. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 14 Ann. Cas. 198, 15 L.R.A. (N.S.) 963, 123 Am. St. Rep. 468; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; State ex rel. Bartlett v. Littrell, 325 Mo. 35, 26 S.W.2d 768; State ex rel. Mitchell v. Gideon, 215 Mo.App. 46, 237 S.W. 220; State ex rel. Ingenbohs v. Landis, 173 Mo.App. 198, 158 S.W. 883.

Cox & Cox and Roberts P. Elam for respondent.

(1) The probate courts have exclusive original jurisdiction of the statutory "discovery of assets proceedings." Secs. 63-67, R.S. 1939; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746. (2) The statutory "discovery of assets proceeding" is, however, not the exclusive remedy to recover assets for a decedent's estate, there being open to the decedent's executor or administrator all common law remedies. Sec. 98, R.S. 1939; Dameron's Admr. v. Dameron, 19 Mo. 317; Howell's Extr. v. Howell, 37 Mo. 125; Niederberg v. Golluber, Mo., 162 S.W.2d 592. (3) The suit instituted by Mrs. Lipic's administratrix in the circuit court (which is here sought to be prohibited) is not identical with the statutory "discovery of assets proceeding" brought by her in the probate court. The issues in the two proceedings are not the same, because it appears that an essential element of recovery by her in the probate court proceeding, which is not essential to recovery by her in the circuit court proceeding, is a showing that the property involved came into the possession or control of Mr. Lipic's executors. Dameron's Admr. v. Dameron, 19 Mo. 317; Howell's Extr. v. Howell, 37 Mo. 125; Stewart v. Glenn, Admr., 58 Mo. 481; In re Huffman's Estate [Huffman v. Huffman], 132 Mo.App. 44, 111 S.W. 848. (4) Relator's petition for writ of prohibition here, having failed and omitted to state whether the property sought to be recovered by Mrs. Lipic's administratrix ever came into the hands of relators in their capacity as executors of Mr. Lipic's estate, fails to establish which of the proceedings by Mrs. Lipic's administratrix (i.e., the statutory "discovery of assets proceeding" in the probate court, or the action for damages in the circuit court) is the applicable remedy for the relief sought. Authorities cited under points (2) and (3). (5) Prohibition being a discretionary writ, it should be utilized to prevent further proceedings of subsequent suits only when, as in abatement of subsequent suits on the ground of prior action pending, the two proceedings have identity of parties, causes of action, issues and relief. Mansur v. Morris, Mo., 196 S.W.2d 287; 1 C.J.S., p. 62, sec. 39; Pocoke v. Peterson, 251 Mo. 501, 165 S.W. 1017; State ex rel. Aetna Life Ins. Co. v. Knehans, 31 S.W.2d 226. (6) Abatement of subsequent suits on the ground of prior action pending should not be had upon mere inference that the later action is unnecessary and vexatious, but only upon inquiry into the actual circumstances of both cases and a determination that the later is unnecessary and vexatious. State ex rel. Craig v. Dougherty, 45 Mo. 294; Dillard v. Owens, 122 S.W.2d 76. (7) The issues in the two proceedings instituted by Mrs. Lipic's administratrix are not identical, and her action in the circuit court is, therefore, neither unnecessary nor vexatious. Authorities cited under Point (3) supra.

OPINION

Ellison, J.

Prohibition to represent Judge Flynn of the circuit court, city of St. Louis. The underlying contest is between two estates, each claiming the same assets. Relators, as executors of one estate, challenge Judge Flynn's jurisdiction to entertain a suit against them in the circuit court for conversion of those assets. That conversion suit was filed by the administratrix of another estate after she had already brought a proceeding against relators in the probate court to discover the same assets, under Sec's 63-67, R.S. 1939, Mo., R.S.A., which latter proceeding is still pending. Relators' theory is that since the two proceedings are essentially the same, and the probate court first acquired jurisdiction of the latter proceeding, therefore the circuit court has no jurisdiction to proceed against them in the conversion suit. The respondent judge [through counsel for the administratrix of the second estate, the real party in interest] disputes this.

The facts in brief are that relators Joseph Lipic, Jr. and Emil Lipic are executors of the will of Joseph Lipic, Sr. who died in 1946. His estate is now under administration in the probate court of St. Louis. In his lifetime he had been the administrator of the estate of Emma Berg Lipic, who died in 1942, and in that estate had inventoried its assets as being only her bank account for about $ 750.

A year or so after the death of said Joseph Lipic, Sr., Gertrude Wheeler was appointed administratrix d.b.n. of said Emma Berg Lipic's estate, and filed in the probate court in that estate the aforesaid proceeding to discover assets against relators as executors of the estate of Joseph Lipic, Sr. She alleged therein that he had embezzled about $ 24,000 of the assets of the Emma Berg Lipic estate, consisting of secured promissory notes, bank paper and cash; that he was concealing and withholding them when he died; and that his executors had them in their possession or control. The probate court had heard that case and had it under advisement when this prohibition proceeding was filed against Judge Flynn.

But two days after she had filed that discovery of assets proceeding in the probate court, the said Gertrude Wheeler, administratrix d.b.n. of the Emma Berg Lipic estate, also filed a suit in "conversion" [which we understand to mean trover and conversion] in the circuit court against relators for the same property, where it is pending in the respondent Judge Flynn's division. It is conceded by the parties that the same identical assets actually are involved in both the probate and circuit court proceedings, the principal difference between them being that the probate court proceeding primarily seeks the recovery of those assets in kind in behalf of the Emma Berg Lipic estate, whereas the circuit court case asks a money judgment for their value because of their wrongful conversion.

Relators, as executors of Joseph Lipic Sr.'s estate, first filed in Judge Flynn's court a verified motion to dismiss the conversion suit on the ground that the probate court had preempted jurisdiction of the controversy in the discovery of assets proceeding, and therefore the circuit court had no jurisdiction. Judge Flynn heard arguments and overruled it. Then relators filed a motion asking him to abate that suit awaiting final action in the discovery of assets proceeding, but he overruled that, also, and had set the conversion case down for trial when the present petition for prohibition was filed here.

We here set out Sec. 63 of our statutes on which the probate proceeding was based. [Sec. 67 makes Sec. 63 applicable not only to proceedings brought by executors and administrators, but also to those brought against them, as here.] The words we have first italicised therein were added by Laws Mo. 1881, p. 32. The words next italicized were added in 1 R.S. 1855, p. 130, § 7, with a footnote "This section has been amended to meet the case of Dameron's Administrator v. Dameron, 19 Mo. Rep. 317." The statute is as...