State ex rel. Nute v. Bruce, 32375.

• Decision Date: 18 April 1934
• Docket Number: No. 32375.,32375.
• Citation: 70 S.W.2d 854
• Parties: STATE OF MISSOURI at the Relation of WILLIAM T. NUTE, Relator, v. LESLIE A. BRUCE, Circuit Judge.
• Court: Missouri Supreme Court

70 S.W.2d 854

STATE OF MISSOURI at the Relation of WILLIAM T. NUTE, Relator, v. LESLIE A. BRUCE, Circuit Judge.

No. 32375.

Supreme Court of Missouri.

Court en Banc, April 18, 1934.

Mandamus.

PEREMPTORY WRIT DENIED.

Farrar & Phillips and T.N. Haynes for relator.

(1) Truth of allegations in petition for mandamus admitted. The respondent's waiver of alternative writ, and filing his demurrer, puts the cause of action at issue, and the allegations demurred to, stand admitted as true. State ex rel. v. Hackman, 283 Mo. 469, 223 S.W. 575; State ex rel. v. Gordon, 238 Mo. 168, 142 S.W. 315; State ex rel. v. Hackman, 217 S.W. 271; State ex rel. v. Bates County, 303 Mo. 641, 362 S.W. 344. (a) In such case and state of the record as here shown, the petition for mandamus is permitted to stand as and for the alternative writ. State ex rel. v. Gordon, 268 Mo. 321, 188 S.W. 88. (2) Circuit courts have constitutional jurisdiction over such actions. Section 22, Article 6, Constitution of Missouri provides that: "The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original jurisdiction in all civil cases not otherwise provided for; and such concurrent jurisdiction with and appellate jurisdiction from inferior tribunals and justices of the peace as is or may be provided by law. It shall hold its terms at such times and places in each county as may be by law directed; but at least two terms shall be held every year in each county." (a) The Legislature may apportion among the courts the judicial power vested in them by the Constitution. State ex rel. v. Nast, 209 Mo. 708, 108 S.W. 563; State ex rel. v. Buckner, 291 Mo. 320, 234 S.W. 651. (b) And under this section of the Constitution the Legislature has power to confer concurrent jurisdiction on the circuit courts with probate courts. State ex rel. v. Edwards, 162 Mo. 660, 63 S.W. 388. (3) Circuit courts have superintending control over probate courts. Section 23, Article 6, Constitution of Missouri provides that: "The circuit court shall exercise a superintending control over criminal courts, probate courts, county courts, municipal corporation courts, justices of the peace, and all inferior tribunals in each county in their respective circuits." (4) Demands may be established by judgments of courts of record. Home Ins. Co. v. Wickham, 281 Mo. 300, 219 S.W. 961; Jenkins v. Morrow, 131 Mo. App. 288, 109 S.W. 1051. (5) Jurisdiction under Chapter 1. Section 5 of Article 1 of said Chapter 1, provides that: "All orders, settlements, trials, and other proceedings contemplated by articles one to thirteen, inclusive, of this chapter shall be had or made in the county in which the letters testamentary or of administration were granted." (a) This being so, under Sections 189, 190 and 5, Revised Statutes 1929, the entire original jurisdiction and control over the estates of deceased persons is vested in the courts of the county where administration is had. Johnson v. Brewn, 210 S.W. 55; Hyde v. Park, 283 S.W. 727. (6) The circuit court action is for the specific performance of a parol contract entered into between decedent George H. Nute in his lifetime, on the one part, and relator, by his mother as natural guardian, of the other part, to the effect that said George H. Nute would pay to relator a certain sum of money, or by his will provide for the payment of the same out of his estate, and which said contract the relator on his part has fully performed, and relator's right of action is in equity against the executors of decedent's estate and the devisees and legatees named in his will. Hall v. Getman, 121 Mo. App. 630, 97 S.W. 607; Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647, 4 S.W. 107, 60 Am. Rep. 270; Teats v. Flanders, 118 Mo. 660, 24 S.W. 126; Healey v. Simpson, 113 Mo. 340, 20 S.W. 881; Alexander v. Alexander 150 Mo. 579, 52 S.W. 256; Steele v. Steele, 161 Mo. 566, 61 S.W. 815; McElvain v. McElvain, 171 Mo. 244, 71 S.W. 142; 58 C.J. 1060. (7) Circuit courts have original jurisdiction of actions at law against estates of deceased persons. Even were the original suit, brought by relator in the circuit court, an action at law, that court would have original and concurrent jurisdiction with the probate court. Section 189, R.S. 1929; Linn County Bank v. Clifton, 263 Mo. 216, 172 S.W. 388; Richardson v. Palmer, 24 Mo. App. 480; State ex rel. v. Akin, 22 S.W. (2d) 836. (a) And the bringing of a suit in the circuit court against an estate of a deceased person, operates as an exhibit of the demand sued for. Bank v. Clifton, 263 Mo. 200, 172 S.W. 383. (8) Original cause is an equitable proceeding. In the original action, relator, as plaintiff, seeks specific performance of the parol contract made in his behalf with George H. Nute, and for a definite sum due him upon such performance, and this being so, his said action is in equity. Hall v. Getman, 121 Mo. App. 640, 97 S.W. 607. (9) Remedy — right to mandamus. The question at issue in the original case and upon which it went off in the circuit court is the sufficiency of the service of the summons, that is, as to whether the circuit court acquired jurisdiction over the persons of defendants and if respondent, as judge, erroneously ruled adversely to relator on such question and declined to hear the case on the merits, then an appeal is not an adequate remedy, and mandamus will lie. State ex rel. v. Wurdeman, 286 Mo. 153, 227 S.W. 64; State ex rel. v. Shackelford, 263 Mo. 59, 172 S.W. 347; State ex rel. v. Homer, 249 Mo. 66, 155 S.W. 405.

Louis A. Laughlin and James H. Harkless for respondent.

(1) The petition filed in the Cass County Circuit Court states no cause of equitable cognizance. Corby v. Bean, 44 Mo. 379; 39 Cyc. 1038; Musser v. Musser, 281 Mo. 649; Totman v. Christopher, 237 S.W. 822; Merry v. Fremon, 44 Mo. 518; Hayes v. Fry, 110 Mo. App. 20; Brown v. Finley, 18 Mo. 375; Stam v. Smith, 183 Mo. 484; Lyons v. Murray, 95 Mo. 23; Humphreys v. Milling Co., 98 Mo. 549; Scott v. Royston, 223 Mo. 592; State Bank v. Lillibridge, 262 S.W. 433, 316 Mo. 972; Lemp Brewing Co. v. Steckmann, 180 Mo. App. 320; Kerwin v. Kerwin, 204 S.W. 922; Clinton v. Clinton, 223 Mo. 371; In re Huffman, 132 Mo. App. 44; Hall v. Getman, 121 Mo. App. 630; Clark v. Cordry, 69 Mo. App. 6; Morrison v. Land, 169 Cal. 580; 1 Pomeroy's Eq. Jur., sec. 221; 40 Cyc. 1073; Ex Parte Simons, 247 U.S. 231; Welsh v. Hour, 136 Atl. 327. (2) The action being at law and transitory, under Section 720, Revised Statutes 1929, the Circuit Court of Cass County had no jurisdiction of the cause. Sec. 720, R.S. 1929; Thompson v. Wood, 115 Cal. 301; Peoples Bank v. Wood, 193 Ill. App. 442; Long v. Stanford, 135 Ga. 823, 70 S.E. 645; McLeod v. Shelton, 42 Miss. 517; Baker v. Puckett, 31 S.W. (2d) 286; Thompson v. Wood, 115 Cal. 301; Secs. 189, 720, R.S. 1929; Stephens v. Bernays, 119 Mo. 147; Green v. Strother, 201 Mo. App. 422; Wernse v. McPike, 100 Mo. 476.

TIPTON, J.

This is an original proceeding in mandamus to compel the respondent, the judge of the Circuit Court of Cass County, Missouri, to set aside an order and judgment sustaining the defendants' plea to the jurisdiction of respondent over the persons of the defendants, and dismissing the case wherein this relator is plaintiff and J. Clarence Fry and Robert W. Pringle, the executors of the estate of George H. Nute, deceased, and J. Clarence Fry and Esther M. Fry, his wife, Robert W. Pringle and Georgia Pringle, his wife, Louise Haines, Mina Loersch and Walter Loersch, her husband, Clara A. Nute, the Town of Wolfboro, Carroll County in the State of New Hampshire, the George H. Nettleton Home for Aged Women in Kansas City, Jackson County, Missouri, and the Children's Mercy Hospital located in Kansas City, Jackson County, Missouri, are defendants.

That cause of action was instituted in the Circuit Court of Cass County by the relator as plaintiff and the petition in substance stated that William T. Nute, Sr., was a resident of Jackson County, Missouri, and died on September 13, 1911, and that he left surviving him this relator as his only child and sole heir at law, and Hazel H. Nute, his wife, who was the mother of this relator. At the time of his death, and for many years prior to it, W.H. Nute, Sr., was in partnership with George H. Nute, under the firm name and style of "Nute Brothers" and engaged in the business of livestock brokers, in Kansas City, Missouri; that the partnership business, at the time of the death of William T. Nute, Sr., was very prosperous and paying high profits and returns on the capital investment, and that the good will of the said business was very valuable. The petition also stated that William T. Nute, Sr., and George H. Nute were brothers of the half-blood; that at the time of William T. Nute's death, the relator was a minor having been born on December 21, 1909; that on or about October 11, 1911, while relator's mother, Hazel H. Nute, was acting as natural guardian for the relator, the relator having no legal guardian, for and in his behalf entered into a contract not in writing wherein the said George H. Nute agreed to act as the legal guardian of the estate of the relator during the relator's minority, and that his share and interest in the estate of William T. Nute, Sr., deceased, including the share in the estate, should be collected, retained, cared for, controlled, managed, and used in said business as long as relator remained a minor; that in consideration thereof George H. Nute agreed to allow interest on the amount of relator's estate, so used by George H. Nute, at the rate of 6 per cent per annum; and that when the relator should arrive at his majority, George H. Nute would turn over all principal remaining in his hands to this relator. It was further agreed that George H. Nute, in consideration of the benefits by him to be derived by the use...