State ex rel. Ponath v. Muench

• Decision Date: 20 July 1910
• Citation: 130 S.W. 282,230 Mo. 236
• Parties: THE STATE ex rel. CAROLINE E. PONATH v. HUGO MUENCH, Judge, et al
• Court: Missouri Supreme Court

130 S.W. 282

230 Mo. 236

THE STATE ex rel. CAROLINE E. PONATH v. HUGO MUENCH, Judge, et al

Supreme Court of Missouri

July 20, 1910

Writ denied.

T. J Rowe, Thos. J. Rowe, Jr., and Henry Rowe for relator.

Three terms after the final decree was entered in the case and with none of the defendants in court, October 22, 1902, the court accepted the resignation of the Lincoln Trust Company as trustee and appointed Caroline Bircher trustee. The court had no jurisdiction to enter this order, and the said judgment appointing Caroline Ponath (nee Bircher) trustee, was and is null and void. Henry Boemler could not waive service for the defendants. An attorney at law has no authority to waive service for client of original process. Bradley v Welch, 100 Mo. 258. An attorney, under ordinary circumstances, has power to acknowledge service of process issued in the cause for which he has been retained, and his written admission of service is binding on his client, with the single exception of the service of the original summons or subpoena against a defendant. In respect to such process there must be specific authority to make such an admission or to waive it by entering an appearance for the defendant. 3 Am. and Eng. Ency. Law (2 Ed.), p. 323; Bradley v. Welch, 100 Mo. 258. The defendants were not in court from the date of the decree, February 25, 1902, to the present time, and all the judgments and orders made in said case from February, 1902, to the present time are null and void. People v. District Court, 26 Colo. 386; Jones v. Brown, 6 N.W. 140; Grove v. Van Duyn, 44 N. J. L. 654; Bingham v. Henrici, 16 A. 618; Bassick Co. v. Schoolfield, 10 Colo. 46; Andrews' Stephen's Pleading (2 Ed.), p. 34; Georgia v. Stanton, 6 Wall. 50; Luther v. Burden, 7 How. 1; Fletcher v. Tuttle, 150 Ill. 41; Kerfoot v. People, 51 Ill.App. 409; Dicey v. Reed, 78 Ill. 206; United States v. Arredondo, 6 Pet. 709; People v. Liscomb, 60 N.Y. 559; Reynolds v. Stockton, 140 U.S. 254; Munday v. Vail, 34 N. J. L. 418; Jacobson v. Miller, 41 Mich. 90; Cromwell v. Sac. Co., 94 U.S. 351; Hope v. Blair, 105 Mo. 93; State ex rel. v. Muench, 217 Mo. 124. This case is bottomed on facts the same as the McManus case supra, and on the authority of that case the preliminary order should be made permanent. The suit, commenced in February, 1902, by Espenschied against Bircher et al., was for the sole and only purpose of permitting him to resign as trustee and appoint his successor. No new matter was alleged in the answer of defendants. The defendants, in propria persona, admitted the allegations of the petition, and joined in the prayer for relief. No new issue was raised by the pleadings. Hope v. Blair, 105 Mo. 93. The issue made by the pleadings was fully and finally determined on February 25, 1902. None of the defendants was ever properly or legally in court after the entry of the decree in February, 1902.

Block & Sullivan, B. R. Brewer and H. A. & C. R. Hamilton for respondents.

(1) Relator's motion for judgment upon the respondents' return must be taken to admit all facts well pleaded in the return. State ex rel. v. Elkin, 130 Mo. 103; Wand v. Ryan, 166 Mo. 649; State ex rel. v. Sheppard, 192 Mo. 505. (2) Where a regular attorney at law appears for a defendant, it will be presumed that he had authority to do so even though the appearance be for a defendant who has not been served with process. Bradley v. Welch, 100 Mo. 268; Weeks on Attorneys, p. 38; Farmers' Bank v. Railroad, 119 Mo.App. 7; Cemetery Assn. v. McCune, 119 Mo.App. 354; Valle v. Picton, 91 Mo. 207; Brown v. Arnold, 131 F. 725; Bonnifield v. Thorpe, 71 F. 927; Markey v. Railroad, 185 Mo. 350; Savings Union v. Long, 123 Cal. 107; Railroad v. Fox, 56 Neb. 746; Ebel v. Stringer, 73 Neb. 249; Sanders v. Price, 33 S.E. 731; Uehlein v. Burke, 119 Ia. 742; Reynolds v. Fleming, 30 Kan. 114; Osborne v. Bank, 9 Wheat. (U.S.) 739; Bacon v. Mitchell, 14 N.D. 454. (3) The relief prayed for should not be granted, because the record in this case shows that at the time the Mercantile Trust Company was appointed trustee, and at the time the judgment sought to be prohibited was rendered, and at the time the St. Louis Union Trust Company was appointed trustee in succession to the Mercantile Trust Company, the relator and all the other parties whose appearance was necessary had voluntarily entered their appearance in said proceedings. Julian v. The Star, 209 Mo. 94; Rector v. Circuit Court, 1 Mo. 607; Shockley v. Fisher, 21 Mo.App. 556; Farrell's Admr. v. Brennan, 25 Mo.App. 81; State v. Woolery, 39 Mo. 527; Thurman v. James, 48 Mo. 235; Boulware v. Railroad, 79 Mo. 494; Meyer v. Broadwell, 83 Mo. 573; Bankers' Life Assn. v. Shelton, 84 Mo.App. 635; Clark v. Brotherhood, 99 Mo. 687; Fitterling v. Railroad, 79 Mo. 504; Harrison v. Murphy, 160 Mo.App. 466; Bank v. Railroad, 119 Mo.App. 1; Real Estate Co. v. Lindell, 133 Mo. 386; Baisley v. Baisley, 113 Mo. 545; Ivy v. Yency, 129 Mo. 501; Crawford v. Railroad, 171 Mo. 77; Rodney v. Gibbs, 184 Mo. 16; Markey v. Railroad, 185 Mo. 350; Seay v. Sanders, 88 Mo.App. 479; Cook v. Spence, 122 S.W. 340.

GRAVES, J. Burgess, J., not sitting, and Valliant, J., dissents in separate opinion.

OPINION

In Banc.

Prohibition.

GRAVES J.

-- This is an original action in prohibition. Relator was formerly Caroline E. Bircher. The original petition was against Hon. Hugo Muench, Judge, and the St. Louis Trust Company, as respondents, but by order of this court other respondents were permitted to come in and defend. In the first place, preliminary order to show cause was granted by one of the judges of this court, and thereafter the order as to the volunteer respondents was made. To this order to show cause all of the respondents made return, whereupon relator moved for judgment on the pleadings and that the preliminary order in prohibition be made permanent. The facts are largely of record and undisputed. These facts when stated obviate an analysis of the petition and answers.

Caroline E. Ponath, formerly Caroline E. Bircher, was one of the beneficiaries of a will made by one Charles A. Bircher. By the terms of such will Fred F. Espenchied and George H. Steinberg were conveyed certain property to be held in trust for the said Caroline E. Bircher (now Ponath) and others. To the February term of the circuit court of the city of St. Louis Fred F. Espenchied filed his petition asking to be relieved of such trust and praying that a new trustee be named. From his petition it appears that George H. Steinberg had theretofore been permitted to resign and he had been made the sole trustee.

Upon the filing of Espenchied's petition each and every party interested, including Caroline E. Bircher (now Ponath), entered their appearance and joined in the prayer of Espenchied to be relieved from the trust. Upon the petition of Espenchied and the answer of the interested parties, the court entered a decree in substance as follows: (1) that Espenchied was relieved from the trust obligations created by the will; (2) the Lincoln Trust Company was designated as his successor; (3) an accounting was required by Espenchied to his successor; (4) costs were adjudged to be paid by the estate. This judgment was entered on February 25, 1902. This seems to have ended the matter until October 20, 1902, when we find a record entry showing a report from the Lincoln Trust Company and petition to resign. Just following is a decree and judgment which is vital in the present proceeding. On October 22, 1902, the circuit court entered the following decree:

"Now at this day come all of the defendants by their attorney Henry Boemler, Esq., and the Lincoln Trust Company, heretofore on the 25th day of February, 1902, appointed successor to the plaintiff, Frederick F. Espenchied, in the trust created under the last will and testament of Charles A. Bircher, and said Lincoln Trust Company presents to the court its report of its administration of said trust estate since the date of its appointment, showing an expenditure by it of $ 127.38 more than the income received by it from the assets of said trust, and that it has incurred in the administration of said trust estate, the sum of $ 386.60 for court costs and legal services, and requesting that the sum of $ 200 be allowed it for its services, as trustee herein, and said Lincoln Trust Company also presents to the court its petition for leave to resign said trust, and the court, having heard and duly considered the same, and defendants by their said attorney consenting thereto, doth order, adjudge and decree that said Lincoln Trust Company be, and is hereby relieved of and from the trust in it vested and imposed under the last will and testament of Charles A. Bircher, deceased, and the decree of this court entered February 25, 1902, in this cause, and that said report be and is hereby in all respects approved, and that said Lincoln Trust Company for its services as trustee herein, be and is hereby allowed the sum of $ 200, and that it have credit against said trust estate of said sum of $ 127.38, advanced by it, and $ 386.60, and that for all of said sums, aggregating $ 713.98, it have, and there is hereby declared in its favor, a lien against the assets of said trust estate in the hands of its successor; that it turn over to said successor the possession of the real estate described in its said report, and stand discharged.

"And the defendants, beneficiaries of said trust, by their said attorney, also present their petition to the court, praying the appointment of the defendant, Caroline Bircher, as the successor of said Lincoln Trust Company in the trust created under the will of said Charles A. Bircher, deceased, and the decree of this court entered March 2, 1889, mentioned in the...