State ex rel. Muth v. Buzard

Decision Date10 November 1947
Docket NumberNo. 40332.,40332.
Citation205 S.W.2d 538
PartiesSTATE OF MISSOURI ex relatione ELISABETH MUTH, MARGARETA WIEGAND, JUSTINE HENKEL, HEINRICH MANN, GERTRUDE LAUER, and CHRISTIAN MANN, Relators, v. PAUL A. BUZARD, Judge of Division No. 8, Circuit Court of Jackson County, Missouri, at Kansas City.
CourtMissouri Supreme Court

(1) Respondent has no judicial power to set aside the judgment of May 4, 1945. In the absence of motion for new trial or appeal, respondent's power to set aside the judgment expired thirty days after entry of the judgment. (2) Petition for writ of error coram nobis or motion in the nature thereof will not lie to review, attack or challenge a fact, jurisdictional or otherwise, which was in issue and adjudicated in the original proceeding. In re Sheldon's Estate, 354 Mo. 232, 189 S.W. (2d) 235; Reed v. Bright, 232 Mo. 399, 134 S.W. 653; Dusenberg v. Rudolph, 325 Mo. 881, 30 S.W. (2d) 94; Hadley v. Bernero, 103 Mo. App. 549, 78 S.W. 64; Cross v. Gould, 131 Mo. App. 585, 110 S.W. 672; Baker v. Smith's Estate, 223 Mo. App. 1234, 18 S.W. (2d) 147; Crane v. Deacon, 253 S.W. 1068. (3) The judgment is not void, not even irregular. Respondent had jurisdiction to render the judgment that was rendered in the will contest suit because the law invested him with jurisdiction of the subject-matter, the petition stated a cause of action, both the res and the necessary parties were brought before the court, the judgment was a permissible one in the class of cases involved and within the issues tendered by the pleadings. Sec. 538, R.S. 1939; Hartford Life Ins. Co. v. Johnson, 268 F. 30; Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773; same case on remand, 71 F. Supp. 813. Campbell v. St. Louis Union Trust Co., 346 Mo. 200, 139 S.W. (2d) 985; Thomson v. Butler, 136 F. (2d) 644; Braeuel v. Reuther, 270 Mo. 603, 193 S.W. 283. (4) Jurisdiction to set aside the judgment is not supplied by any alleged diligence of movants for diligence, however, great, cannot invest respondent with a jurisdiction he is not granted by the law. Lack of diligence may on the other hand defeat an otherwise existing right to coram nobis and when such lack of diligence appears on the face of the record, it is an additional ground for prohibition. Here the record discloses complete failure and neglect by movants to protect their rights in the first instance. Reed v. Bright, 232 Mo. 399, 134 S.W. 653; Kings Lake Drain. Dist. v. Winkelmeyer, 228 Mo. App. 1102, 62 S.W. (2d) 1101; Pike v. Pike, 193 S.W. (2d) 637; Hadley v. Bernero, 103 Mo. App. 549, 78 S.W. 64; Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W. (2d) 435. (5) Jurisdiction to render the judgment was not affected by alleged incompetency of evidence. The testimony of Phil Steil, one of movants, of declarations made by Conrad H. Mann was competent under the pedigree or family history doctrine. Osmak v. American Car & Foundry Co., 328 Mo. 159, 40 S.W. (2d) 714; Topper v. Perry, 197 Mo. 531, 95 S.W. 203; Tuite v. Supreme Forest Woodmen Circle, 193 Mo. App. 619, 187 S.W. 137; Rauch v. Metz, 212 S.W. 357; State v. Bowman, 278 Mo. 492, 213 S.W. 64; In re Imboden's Estate, 111 Mo. App. 220, 86 S.W. 263; Vantine v. Butler, 240 Mo. 521, 144 S.W. 807; Ribas v. Stone & Webster Eng. Corp., 95 S.W. (2d) 1221; Hemonas v. Orphan, 191 S.W. (2d) 352; Gordon v. Metropolitan Life Ins. Co., 175 S.W. (2d) 506. (6) But, even if incompetent, the admission of same (even if it had been objected to) was a mere error of law to be corrected, if at all, by appeal or motion for new trial. Erroneous admission of evidence does not affect the jurisdiction of the court. Finally on account of their position previously taken movants are in no position to now complain of incompetent evidence. Hadley v. Bernero, 103 Mo. App. 549, 78 S.W. 64; Gruender v. Frank, 267 Mo. 713, 186 S.W. 1004. (7) Relators' rights of inheritance are not based on and they do not claim under the judgment. Their rights of inheritance are based on the statute of descents and distributions and the Treaty of Friendship, Commerce and Consular Rights with Germany. Insofar as the judgment is in rem, relators, to the same extent as other members of the public, but not otherwise, are foreclosed. The judgment is in rem only with respect to whether or not the particular paper writing was or was not the last will of the deceased. No one can now claim under the purported last will but relators are not foreclosed from proving their own existence and relationship in the probate court. Sec. 306, R.S. 1939; Byrne v. Byrne, 289 Mo. 109, 233 S.W. 461; Becher v. Contoure Laboratories, 279 U.S. 388, 49 S. Ct. 356; Manson v. Williams, 213 U.S. 453, 29 S. Ct. 519. (8) Writ of prohibition lies where the record shows upon its face that respondent is entertaining jurisdiction of a proceeding in which no cause of action is or can be stated. State ex rel. Johnson v. Sevier, 339 Mo. 483, 98 S.W. (2d) 677; Reed v. Bright, 232 Mo. 399, 134 S.W. 653; State ex rel. v. Cook, 353 Mo. 272, 182 S.W. (2d) 292; State ex rel. v. Seehorn, 344 Mo. 547, 127 S.W. (2d) 418. (9) Where lack of jurisdiction appears on the face of the record it is not necessary for the objection to be raised before respondent preliminary to application for writ of prohibition, especially where respondent takes the position that he would have proceeded to act, even though objection had been made. State ex rel. v. Hartmann, 330 Mo. 386, 51 S.W. (2d) 22; State ex rel. Moberly v. Sevier, 337 Mo. 1174, 88 S.W. (2d) 154; State ex rel. v. Bright, 224 Mo. 514, 123 S.W. 1057; State ex rel. v. Oliver, 163 Mo. 679, 64 S.W. 128; State ex rel. v. Aloe, 152 Mo. 466, 54 S.W. 494; State ex rel. v. Cook, 353 Mo. 272, 182 S.W. (2d) 292. (10) Relators, although strangers to the record in the proceeding pending before respondent, are entitled to seek a writ of prohibition, especially where it is proposed to vitally affect their rights in the probate court. Thomas v. Mead, 36 Mo. 233; State ex rel. v. Eby, 170 Mo. 497, 71 S.W. 52; State ex rel. v. Wurdeman, 304 Mo. 583, 264 S.W. 402; State ex rel. v. Calhoun, 207 Mo. App. 149, 226 S.W. 329, certiorari quashed, 233 S.W. 483; Clark, Attorney General, v. Allen, 67 S. Ct. 1431. (11) The only full, adequate and complete remedy relators have is by writ of prohibition since they have no right of appeal from respondent's action in the proceeding pending before him and cannot intervene without losing the right to attack respondent's jurisdiction and the propriety of the proceeding. Sec. 21 of the Code of Civil Procedure (R.S. Mo. Ann., Sec. 847.21); Rule 24(a) of the Federal Rules of Civil Procedure; 6 Encyclopedia of Federal Procedure (2d Ed.), sec. 2389, pp. 497-501. (12) Our courts are open to non-resident enemy aliens to employ all the means and appliances of defense, including resort to appellate courts. Even non-defensive proceedings by non-resident enemy aliens are permissible where adequate measures may be taken to prevent advantage to the enemy. McVeigh v. United States, 11 Wall. 259; Ex parte Kawato, 317 U.S. 69, 63 S. Ct. 115; Petition of Bernheimer, 130 F. (2d) 396; Birge-Forbes Co. v. Heye, 251 U.S. 317, 40 S. Ct. 160. (13) Probate proceedings for the administration of deceased persons' estates are in rem. Once the proceeding is instituted all persons, heirs, beneficiaries and creditors are required to exhibit and establish their rights and claims or be forever barred from participation in the estate. Secs. 80, 230, R.S. 1939; In the Matter of Bomino's Estate, 83 Mo. 433. (14) A non-resident enemy alien who claims an interest in the estate of a deceased person being administered by the probate court has the right to institute and prosecute a prohibition proceeding to protect and defend his right of inheritance which he is bound to assert in the probate court or suffer its loss. State ex rel. v. District Court, 115 Mont. 174, 140 Pac. (2d) 583; In re Henrichs' Estate, 180 Cal. 175, 179 Pac. 883; Rau v. Rowe, 184 Ky. 841, 213 S.W. 226; Schott v. Schott's Executor, 298 Ky. 55, 182 S.W. (2d) 220. (15) The Alien Property Custodian is authorized to designate and appoint attorneys to appear for and represent non-resident enemy aliens in probate proceedings and the courts are open to all proceedings instituted and prosecuted in the names of non-resident enemy aliens by such designated attorneys which have as their purpose the protection of their rights of inheritance, subject to the right of the United States to capture, seize and possess such inheritance. Trading with the Enemy Act, 50 U.S.C.A., appendix, commencing at p. 189 (the volume marked Title 50, War); Amend. of Sec. 5 of the original Act appears as Sec. 616 of the First War Powers Act, 50 U.S.C.A., appendix, Sec. 616, p. 250 (the volume marked Title 50, appendix, Emergency and Postwar Legislation); Executive Order 9095, as amended (being Executive Order 9193, Exhibit 6 of stipulation); General Orders 5, 6 and 20 (attached to Exhibit 4 of the stipulation); Knapp v. Graham, 67 N.E. (2d) 841; Clark, Attorney General, v. Allen, 67 S. Ct. 1431.

Ben W. Swofford, Robert L. Jackson and Swofford, Jackson & Shankland for respondent.

(1) The relators are non-resident enemy aliens and as such have no civil rights or any right to bring or maintain any lawsuit in State or Federal Courts, Sec. 7(b), Trading With the Enemy Act, 50 U. S.C.A. 189 (Act of Oct. 6, 1917), 40 Statutes 411; Ex parte Colonna, 62 S. Ct. 373, 314 U.S. 510, 86 L. Ed. 379; The Leonties Teryazos Szanti v. Teryazos, 45 F. Supp. 611; Sundell v. Lotmar Corp., 44 F. Supp. 816; In re Walz, 46 N.Y.S. (2d) 589; H.P. Drewry, S.P.R.L. v. Onass, 42 N.Y.S. (2d) 74; Hanger v. Abbott, 6 Wall. 532, 18 L. Ed. 939; Caperton v. Bowyer, 14 Wall. 216, 20 L. Ed....

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