State ex rel. North St. Louis Trust Co. v. Wolfe
| Decision Date | 20 December 1938 |
| Docket Number | 35861 |
| Citation | 122 S.W.2d 909,343 Mo. 580 |
| Parties | State of Missouri at the relation of North St. Louis Trust Company, Executor of the Estate of Hanna A. Milbradt, Relator, v. John J. Wolfe, Judge of the Thirteenth Judicial Circuit |
| Court | Missouri Supreme Court |
Writ quashed.
Kurt Von Reppert and Anderson, Gilbert, Wolfort, Allen & Bierman for relator.
(1) By Section 63, Revised Statutes 1929, and the following sections, the probate court is vested with exclusive original jurisdiction in proceedings for the discovery of assets and the issues arising therein. Tygard v. Falor, 163 Mo 246; Scott v. Royston, 223 Mo. 592; Matson v Pearson, 121 Mo.App. 128; Seibert v. Hardin, 8 S.W.2d 909; Kerwin v. Kerwin, 204 S.W. 922; McKee v. Allen, 204 Mo. 673; Lamp Brewing Co. v Steckman, 180 Mo.App. 320; Davis v. Johnson, 58 S.W.2d 746; Clinton v. Clinton, 223 Mo. 371; Priest v. Spier, 93 Mo. 111. (2) Even if the plaintiff Luecke's petition did not allege a trust that had terminated, the Circuit Court of St. Louis County can acquire no jurisdiction of a suit by an alleged cestui que trust (plaintiff Luecke) to maintain a bill in equity against the alleged trustee in possession (Ethel Funk) and an adverse claimant (relator North St. Louis Trust Company, executor) who claims a legal title adverse to the alleged trustee. 65 C. J. 1009, 1010; Dameron v Gold, 17 N.C. 17. (3) But the circuit court can acquire no jurisdiction of any issue against your relator; if the allegation of plaintiff Luecke's petition be true, the alleged trust terminated prior to the bringing of her action and she had an adequate remedy at law against Ethel Funk, who was in possession of the property plaintiff Luecke seeks to recover. Where a trust has become fully executed and terminated there remains nothing for equity to do, and a plaintiff seeking recovery or the delivery of such property has an adequate remedy at law and there is no jurisdiction in equity as to your relator under the allegations in plaintiff Luecke's petition. State ex rel. v. Reynolds, 227 S.W. 48; Hoffman v. Hoffman's Executor, 126 Mo. 493. (4) The circuit court has no jurisdiction of the attempted cross-bill by defendant Funk against this relator in the suit by Luecke against said Funk and this relator because (a) said attempted cross-bill does not seek relief against the plaintiff Luecke and this relator, but only against this relator, and (b) the relief sought against this relator is not within the jurisdiction of the circuit court because jurisdiction is in the probate court, as herein elsewhere more fully pointed out, and suit in equity cannot be had to quiet title to personal property. The statutes relating to pleadings do not authorize one defendant to inject into plaintiff's suit an independent suit either at law or in equity against his codefendant, not necessary or germane to his defense to the plaintiff's suit, and the relief that may be granted to one defendant against another is only such as is incident to his defense, and the defendant cannot by way of equitable cross-bill convert an action at law into one in equity and thereby deprive the codefendant in that case of a right to a trial by jury. Sec. 777, R. S. 1929; Joyce v. Growney, 154 Mo. 265; Fulton v. Fisher, 239 Mo. 116; Babcock v. Reeger, 58 S.W.2d 722. (b) The removal of clouds from title to personal property has never, in the State of Missouri, been a subject of equity. It has been attempted without result. Lockwood v. City, 24 Mo. 21; State v. Wood, 155 Mo. 446; Clothing Co. v. Steidemann, 120 Mo.App. 525. (5) Since neither the suit of plaintiff Luecke nor the cross-bill of Ethel Funk can confer jurisdiction on the circuit court over your relator and its claim as executor of the estate of Hanna A. Milbradt, deceased, to the property set out in the interrogatories and the answers thereto, prohibition will lie. State v. Sevier, 98 S.W.2d 681; State ex rel. v. McQuillin, 256 Mo. 704; State ex rel. v. Latshaw, 291 Mo. 599; Dahlberg v. Fisse, 398 Mo. 224.
Fred E. Mueller, Orla M. Hill and A. G. Schumacher for respondent.
(1) The Circuit Court of St. Louis County, where the respondent presides, having general equity jurisdiction, was the proper forum in which to institute and prosecute the action of plaintiff Luecke to declare and enforce a trust. State ex rel. v. Akin, 22 S.W.2d 836; Broadway Bank v. Schlater, 17 S.W.2d 591; Harris Banking Co. v. Miller, 190 Mo. 640; In re Estate of Connor, 254 Mo. 66; Clay v. Walker, 6 S.W.2d 967; 65 C. J., pp. 1011, 1013, secs. 940, 942; First Baptist Church v. Robberson, 71 Mo. 337; Presbyterian Church v. McElhinney, 61 Mo. 543; Rawlings v. Rawlings, 58 S.W.2d 738; Dietrich v. Jones, 53 S.W.2d 1061; Ewing v. Parrish, 148 Mo.App. 504. (a) The Probate Court of St. Louis County has no jurisdiction to declare and enforce a trust such as is pleaded in the petition of plaintiff Luecke. State ex rel. v. Aiken, 22 S.W.2d 836; Clay v. Walker, 6 S.W.2d 967; 65 C. J., p. 1013, sec. 942; Presbyterian Church v. McElhinney, 61 Mo. 543; Est. of Glover & Shepley v. Shepley, 127 Mo. 164; Rawlings v. Rawlings, 58 S.W.2d 738; Bond v. Unsell, 72 S.W.2d 874; Cunningham v. Kinnerk, 74 S.W.2d 1110; Dietrich v. Jones, 53 S.W.2d 1062; Orr v. St. Louis Union Tr. Co., 236 S.W. 649; State ex rel. v. Blair, 131 Mo.App. 299; 26 R. C. L., sec. 226, p. 1363. (2) The court over which respondent presides has general equity jurisdiction. It is possessed of the subject matter and has jurisdiction of all of the parties interested in the action of plaintiff Luecke, and the respondent has the jurisdiction and duty to proceed to a full determination of the rights of all the parties, whether legal or equitable. Butler v. Lawson, 72 Mo. 248; Methodist Benev. Assn. v. Bank, 54 S.W.2d 474; Winning v. Brown, 100 S.W.2d 303; Jaudon v. Lantz, 47 S.W.2d 188; Jones v. McGoneble, 37 S.W.2d 892; Wiemer v. Wagner, 20 S.W.2d 650; Cape County Sav. Bank v. Wilson, 34 S.W.2d 981; Schwartzmann v. London & Lancashire Fire Ins. Co., 2 S.W.2d 592; 65 C. J., p. 1013, sec. 943. (3) It was proper for defendant Funk to plead in her separate answer as many defenses as she might have, whether legal or equitable, or both. Sec. 777, R. S. 1929. (4) Defendant Funk may plead, prosecute and have relief against her codefendant, if the matter pleaded be of a character responsive to the plaintiff's suit, or in aid of her defense, whether the matter pleaded be legal or equitable. Babcock v. Rieger, 58 S.W.2d 722; Fulton v. Fischer, 239 Mo. 116; Joyce v. Growney, 154 Mo. 253. (5) The cause pleaded by plaintiff Luecke is of purely equitable cognizance, and the summary statutory remedy in the probate court under the discovery of assets statute is not available. Phillips v. Alford, 90 S.W.2d 1060; Davis v. Johnson, 58 S.W.2d 746; Est. of Glover v. Shepley, 127 Mo. 164; Brewing Co. v. Stickmann, 180 Mo.App. 320. (6) Your relator, the North St. Louis Trust Company, executor, claims an interest in the subject matter of the action pleaded by defendant Funk, and it is therefore a proper party to the action. Secs. 701, 703, R. S. 1929; In re Corlius Est., 47 S.W.2d 215; Clay v. Walker, 6 S.W.2d 967; Shelton v. Harrison, 182 Mo.App. 414; Spicer v. Spicer, 249 Mo. 583; Butler v. Lawson, 72 Mo. 248; Hutchins, etc., v. Security Tr. & Sav. Bank, 281 P. 1026, 65 A. L. R. 1063. (7) The respondent has jurisdiction of the class of cases such as described in the petition of plaintiff Luecke, and has jurisdiction of the subject matter of the action and of the parties; therefore prohibition will not lie. Even though respondent may act erroneously, error cannot be presumed or anticipated, and if respondent should commit error prohibition would not be a proper remedy. State ex rel. v. Hendrichs, 36 S.W.2d 409; State ex rel. v. Johnson, 239 S.W. 848; State ex rel. v. Calvird, 195 Mo.App. 354; State ex rel. v. Ryan, 67 S.W.2d 985; State ex rel. v. Harris, 67 S.W.2d 983. (8) Prohibition is not a writ of right. The issuance of the writ is dependent upon the facts of the particular case, measured by the discretion of the court to which the application is made. Interfering, as the writ seeks to do, with the action of a subordinate tribunal, moving, as such a tribunal is presumed to move, within its prescribed orbit, the writ is never properly granted except where usurpation of jurisdiction or an act in excess of same is clearly evident. State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72; State ex rel. Morse v. Burckhartt, 87 Mo. 533; State ex rel. Clark v. Klene, 201 Mo.App. 417, 212 S.W. 55; State ex rel. Keirsey v. Calvird, 195 Mo.App. 356, 191 S.W. 1080; State ex rel. Finch v. Duncan, 195 Mo.App. 545, 193 S.W. 950; School Dist. v. Sims, 193 Mo.App. 484, 186 S.W. 4.
Bradley, C. Ferguson and Hyde, CC., concur.
This cause is an original proceeding in prohibition to prohibit a circuit court judge from proceeding further in a cause pending in his court. Preliminary writ was issued. Upon the filing of the return, which raised only questions of law, relator filed motion for judgment on the pleadings. In this situation, the facts, well pleaded in the petition, will be taken as true. [Caulifield v. Broaddus, 234 Mo 331, 137 S.W. 271; State ex rel. Busby v. Cowan (Mo. App.), 107 S.W.2d 805.]
The facts, from the petition and the return, are as follows Hanna A. Milbradt executed her will March 14, 1935, and died September 13, 1935, and relator, named as executor in the will, was on September 18, 1935, appointed as such by the probate court of St. Louis County, and took charge of the estate. May 8, 1936, Minna Boecker, a sister of testatrix, and a specific and residuary legatee under the will, filed in the probate court (under Sec. 63, R. S. 1929, Mo. Stat. Ann., sec. 63, p. 38) an...
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