State ex rel. Penfield v. Mosman
| Decision Date | 01 February 1909 |
| Citation | 115 S.W. 1041,135 Mo.App. 124 |
| Parties | THE STATE OF MISSOURI ex rel. ANNA R. PENFIELD, Relator, v. C. A. MOSMAN, Judge, etc., et al., Respondents |
| Court | Kansas Court of Appeals |
Writ dismissed.
Rusk & Stringfellow and Chas. C. Crow for relator.
(1) Even where the circuit court has jurisdiction of the general subject-matter, yet if it attempts to exceed its jurisdiction, prohibition will lie in this court to restrain such attempt. The mere fact that the circuit court, or judge thereof, in vacation, has super-intending control over the probate court, gives no power to compel the probate court to do an unlawful or an unauthorized act, so that in this case if the probate court was in the exercise of its lawful jurisdiction in making the order of May 29, 1908, and no appeal lay from that order, then the Honorable C. A. Mosman exceeded or was attempting to exceed his lawful jurisdiction and prohibition should be granted by this court. State ex rel. v. Allen, 45 Mo.App. 551; Railroad v Wear, 135 Mo. 230; State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 217; State ex rel. v. Elkin, 130 Mo. 90; State ex rel. v. Eby, 170 Mo. 526; State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Sale, 188 Mo. 493. (2) A suit in the circuit court, to contest the validity of this alleged last will and testament operated as an appeal from the order probating said will, and since the institution of said suit, there is no probated will of said Thomas Ashton, deceased, in existence. Shaff v. Peters, 111 Mo.App. 458; Lamb v. Helm, 56 Mo. 420; Lapsley v. McPike, 50 Mo. 589; Hugh v. Burris, 85 Mo. 660; State ex rel. v. Guinotte, 156 Mo. 513. (3) The order of the probate court and the alleged receipt given by Mrs. Ashton and filed with the probate court show upon their face that she takes solely by virtue of the alleged last will and testament of Thomas Ashton, deceased. Now the probate court's power to act being based solely upon the order of probate, and appeal having been taken from this order, the ground was thereby cut from under all orders based on this order of probate, and clearly it thereupon became the duty of Mrs. Ashton as soon as the administrator pendente lite was appointed, to turn over to him all the property of the estate for preservation, pending the litigation. How can an order by the lower court, based solely upon a judgment, be effective when an appeal has been granted from the judgment upon which it is based? State ex rel. v. Gates, 143 Mo. 63; State ex rel. v. Burnes, 107 S.W. 1094; Lilley v. Mink, 126 Mo. 190, 221. (4) The probate court, with all the evidence before it, and after a full hearing, in which Lucinda B. Ashton was personally present and also represented by the same counsel who now represent her, sustained plaintiff's motion to appoint an administrator pendente lite, and its action in that regard is conclusive. No appeal can be granted from such action, and it necessarily follows that no appeal can be granted from any order incident to that order of appointment. Flick v. Schenck, 110 S.W. 1074; State ex rel. v. Withrow, 108 Mo. 407; State ex rel. v. Reynolds, 121 Mo.App. 708; Looney v. Browning, 112 Mo.App. 195; State ex rel. v. Fowlere, 108 Mo. 470. (5) There is no doubt of the jurisdiction of this court. By even a casual reading of the constitutional provisions creating this court, counsel on the other side will find that this court is given superintending control over all inferior courts at least in cases where this court would have appellate jurisdiction and as the proceeding sought to be prohibited is mandamus, it is impossible to comprehend where, under the facts of this case, there might be more than $ 4,500 involved.
C. F. Strop and Fulkerson, Graham & Smith for respondents.
(1) Relator's application for prohibition is insufficient: (a) There is no allegation that petitioner is without other adequate remedy. State ex rel. v. Seay, 23 Mo.App. 630. (b) Petitioner has adequate remedy by appeal from the judgment of the circuit court should its action be adverse. Hence prohibition does not lie. State ex rel. v. McIlhanny, 199 Mo. 67; State ex rel. v. Stobie, 194 Mo. 14; State ex rel. v. Sale, 188 Mo. 493; Kalbfell v. Wood, 103 Mo. 675; Ward v. Ryan, 166 Mo. 649; Railway v. Woodson, 110 Mo.App. 208. (c) Prohibition is not the proper remedy to correct errors, but only to prevent usurpation of authority in cases where no other remedy is adequate. State ex rel. v. Kline, 116 Mo. 268; State ex rel. v. Seay, 23 Mo.App. 630; State ex rel. v. Railway, 100 Mo. 59; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v. Burckhart, 87 Mo. 533; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Stobie, 194 Mo. 14. (2) The Court of Appeals has no jurisdiction to issue a writ of prohibition in this case. It is fundamental that in all cases in which an appeal would properly lie to the Supreme Court, the Supreme Court alone has jurisdiction to grant a writ of prohibition. The effect of this proceeding is, if it is sustained, to take away from respondent Ashton one hundred and fifty shares of stock of the admitted value of at least $ 36,000. Certainly at least this sum is involved. It makes no difference in what form the action may be if the amount involved exceeds the jurisdiction of this court, this court has no power or jurisdiction to grant the relief asked herein. State ex rel. v. Allen, 45 Mo.App. 551; State ex rel. v. Rombauer, 101 Mo. 506; Kitchell v. Railway, 146 Mo. 457; Gartside v. Gartside, 42 Mo.App. 513; Evans & H. Co. v. Smelter Co., 48 Mo.App. 636; State ex rel. v. Rombauer, 130 Mo. 288; Overall v. Traction Co., 88 Mo.App. 175.
In the year 1906, Thomas Ashton, a resident of Buchanan county, died, leaving what purported to be his will, which in July of that year was filed in the office of the probate court of that county and by it probated as the last will and testament of the deceased.
By the terms of the instrument, Lucinda B. Ashton, widow of the deceased, was appointed executrix of his estate. The beneficiaries and distributees under said instrument were as follows: His widow, Lucinda B., Louisa M. Sheridan, Effie McDonald, William S. Ashton and Charles F. Ashton, his children; Thomas W. Ashton and Anna Laura Ashton, his grandchildren, and Sallie Frans, his servant.
On the 16th day of August, 1907, Lucinda B., as executrix, filed her annual settlement in the probate court, showing about $ 36,000 due the estate, which consisted of one hundred and fifty shares of stock in what was known as the Ashton Investment Company, a corporation, which said shares comprised all its stock and the entire assets of the deceased's personal estate. On the 17th of August of said year, without notice to any of the other interested parties to said estate, the said Lucinda B., as executrix, obtained an order from the probate court turning over to her the one hundred, fifty shares of stock mentioned, for which she executed a receipt.
The alleged will of deceased devised all his property, both real and personal, to Lucinda B. for life. Anna A. Penfield, about the 1st day of May, 1908, instituted a suit in the circuit court of Buchanan county to contest the validity of said instrument as the last will and testament of the deceased, and Lucinda B. Ashton was made a defendant and service was had upon her. All the parties interested, except one, were made parties to the suit. On the 19th day of May, 1908, Anna A. Penfield filed a motion in the probate court, reciting the fact of the institution of the said suit to contest the validity of said instrument as the will of the said Thos. Ashton, and asking that an administrator pendente lite be appointed. The motion was sustained and an administrator of the estate was appointed pending the action to contest the will of the deceased.
On the 29th of May, the court set aside the order theretofore made on the 17th day of August, 1907, and ordered the said Lucinda B. to make settlement of the estate and turn over all the property...
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