State ex rel. McGarry v. Kirkwood

• Decision Date: 19 December 1967
• Docket Number: No. 2 and H,R,No. 2,No. 32806,2 and H,2,32806
• Citation: 423 S.W.2d 205
• Parties: STATE of Missouri ex rel. Ann Marie McGARRY, Thomas J. McGarry and Patrick J. Hamill, Relators, v. Robert J. KIRKWOOD, Judge of the Circuit Court of the City of St. Louis, Div.is Successor as Judge of said Divisionespondent.
• Court: Missouri Court of Appeals

Page 205

423 S.W.2d 205

STATE of Missouri ex rel. Ann Marie McGARRY, Thomas J McGarry and Patrick J. Hamill, Relators, v. Robert J. KIRKWOOD, Judge of the Circuit Court of the City of St. Louis, Div. No. 2 and His Successor as Judge of said Division No. 2, Respondent.

No. 32806.

St. Louis Court of Appeals, Missouri.

Dec. 19, 1967.

Donald V. Fraser, Jr., Susman, Willer, Rimmel & Elbert, Harold I. Elbert, St. Louis, for relators.

W. W. Sleater, Suelthaus & Krueger, St. Louis, for respondent.

DOERNER, Commissioner.

This is an original proceeding in mandamus to compel the respondent or his successor to set aside an order dismissing relators' motions for the appointment of a guardian ad litem for one of the defendants alleged to be incompetent and to hear said motions on their merits. Since the respondent dismissed the motions solely on the ground that as a matter of law the court had no jurisdiction to appoint a guardian ad litem, and as the facts are uncontroverted, we issued our alternative writ. State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857; State ex rel. Reis v. Nangle, Mo.App., 349 S.W.2d 508.

It appears from the pleadings and exhibits before us that relator Patrick J. Hamill instituted the action below against John N. Hamill and Mary A. Hamill, his brother and sister, to have 28 shares of the common stock of the P. J. Hamill Transfer Co., presently registered in their names, divided equally between relator and his seven living brothers and sisters, (including John and Mary), and the sole legatee of a deceased sister. In his petition Patrick alleged that said 28 shares, owned by his mother and father at the time of their deaths, descended to their nine children by operation of law in the absence of administration on his parents' estates. The suit was instituted as a class action on behalf of Patrick and those similarly situated but not joined. After their motion to dismiss was overruled, defendants John, Mary and the Transfer Company filed a joint answer in which they pleaded that all of the brothers and sisters, including Patrick, had agreed following their mother's death that the shares standing in her name should be given to their father; and denied that afterward, at the time their father died, he was the owner of any shares. On the same day they filed their answers the defendants orally moved to join the other living brother and sisters, which motion the court sustained and process was served upon them.

Thereafter one brother, Daniel T. Hamill, entered his appearance, adopted plaintiff's petition, and aligned himself with Patrick. One sister, Ann Marie McGarry, (another relator here) filed a motion to require the defendants to make their answer more definite and certain. After obtaining time to plead for one sister, Alice M. M_ _, ¹ the same counsel who represented John, Mary and the Transfer Company filed separate answers on behalf of the three remaining sisters, Virginia Wehner, Loretto Woods, and Alice. By all of such answers the matters pleaded in the joint answer of John, Mary and the Transfer Company were adopted, and it was further stated that the sister answering did not wish to become a party to the action and that Patrick did not represent her nor sue as her representative. The third relator here, Thomas J. McGarry, who is the sole legatee under the will of the deceased sister, Genevieve Hamill, filed an ex parte motion to intervene, which the court sustained and granted him 60 days within which to plead.

After Alice had been granted time to plead but before her answer was filed Patrick filed a motion for the appointment of a guardian ad litem for Alice. Subsequently, after her answer was filed, similar separate motions were filed by Thomas and by Ann Marie. While the allegations in the three motions are not the same, they may be fairly summarized as stating that Alice is afflicted with a degenerative brain disease which has caused premature and advanced senility; that she has been hospitalized for two stated periods, during which medical authorities determined her medical prognosis to be completely negative; that by reason of her condition she is not able to comprehend the issues nor understand her rights in the matter before the court; that in addition to her mental incapacity she lacks physical capacity to sign her name and could not have authorized anyone to represent her; that her interest, which may exceed $35,000, is diametrically opposed to those of John and Mary; that she has never been adjudicated as incompetent to handle her affairs; and that her husband stated that he would not do anything concerning his wife's interest, but rather allow a judgment to be entered against her by default. In addition to their motions, Thomas and Ann Marie filed written interrogatories in which they propounded various questions to John and Mary concerning the latter's knowledge and belief as to the physical and mental health of Alice, whether they were present when she is alleged to have signed her answer, and similar inquiries. John and Mary filed objections to such interrogatories in which they pleaded that the court was without jurisdiction to entertain any matter pertaining to the questions asked them. On October 28, 1966 the objections of John and Mary to both sets of interrogatories were presented and heard. Their objections to the interrogatories of Thomas J. McGarry were sustained and those to the interrogatories of Ann Marie taken under advisement by the court, with leave to the parties to file successive briefs. Although the three separate motions for the appointment of a guardian had never been called up and heard or submitted, the respondent, on December 7, 1966, entered the following order:

"In the instant case Thomas J. McGarry has filed a motion for the appointment of a guardian ad litem for defendant Alice M. M_ _, nee Hamill. There is no evidence before the Court that Alice M. M_ _ is incompetent; the statement of attorney is not sufficient to establish her incompetent. If she is imcompetent it would be necessary to establish this fact in the county where she lives (475.035, R.S.Mo. 1959). So, therefore, if a guardian is to be appointed the venue is...