State ex rel. Pope v. Lisle, 9075

Decision Date22 July 1971
Docket NumberNo. 9075,9075
Citation469 S.W.2d 841
PartiesSTATE of Missouri ex rel. Clea POPE, Relatrix-Appellant, v. Hon, Henry L. LISLE, Barton County Probate Judge, Respondent.
CourtMissouri Court of Appeals

Gordon R. Boyer, Boyer & Ratzlaff, Lamar, for relatrix-appellant.

John R. Miller, Lamar, for respondent.

TITUS, Presiding Judge.

Relatrix is the mother of four-year-old Chi Chi Pope; respondent is the Probate Judge of Barton County. Upon the representation that Chi Chi was the sole beneficiary of a $10,000 insurance policy written on the life of her deceased father, relatrix and the child's paternal grandfather separately petitioned the probate court for appointment as guardian for Chi Chi's estate. Following a hearing and determination that each petitioner was unfit, both applications were denied and the probate court appointed the public administrator as guardian. Immediately thereafter relatrix filed her 'Petition for Writ of Mandamus' (and subsequently an amended petition) in the Circuit Court of Barton County. An alternative writ was issued directing respondent to show cause why the public administrator's appointment should not be set aside and why relatrix should not be appointed guardian of her daughter's estate. Respondent filed a 'Motion to Dismiss Alternative Writ of Mandamus' and relatrix countered with a 'Motion for Judgment on the Amended Petition.' Relatrix has now appealed from the circuit court's judgment which overruled her motion and sustained respondent's motion by dismissing the alternative writ with prejudice.

Some of the issues presented on appeal suggest that the procedures followed in the trial court equal the scientific acumen employed by dowsers. Our disposition of this cause makes a specific determination of those issues unnecessary. However, it is not amiss that all involved with mandamus should con State ex rel. Kopper Kettle Restaurants, Inc. v. City of St. Robert, Mo.App., 424 S.W.2d 73, 75--76(1--6), which embodies a most sagacious critique on the subject. See also State ex rel. Brandon v. Hickey, Mo.App., 462 S.W.2d 159, 160--161(4, 5), and Rule 94.01 et seq.; § 52..010 et seq. (References herein to rules and statutes are to Missouri Supreme Court Rules of Civil Procedure, V.A.M.R., and to RSMo 1969, V.A.M.S.)

We do not know what reasons may have guided the court nisi to its judgment. Nevertheless, our concern is whether a correct result was reached, and not in determining what those reasons may have been or whether they were right or wrong. White v. Smith, Mo.App., 440 S.W.2d 497, 512(21). A litigant seeking a writ of mandamus must show that he is possessed of a clear, unequivocal right to the remedy (State ex rel. Christian v. Lawry, Mo.App., 405 S.W.2d 729, 731(7)), for mandamus will not issue in doubtful cases. State ex rel. Burke v. Ross, Mo.App., 420 S.W.2d 365, 368(10). Mandamus, as a general rule, will not lie if an adequate remedy by appeal exists (State ex rel. University Bank v. Blair, 365 Mo. (banc) 699, 700, 285 S.W.2d 678, 679(2); 55 C.J.S. Mandamus § 22, pp. 51--56), and although a party has lost such a remedy through negligence or ignorance of the right of appeal, he will not be entitled to a mandamus on the ground of the then insufficiency of the ordinary remedy at law. State ex rel. Scott v. Scearce, Mo.App., 303 S.W.2d 175, 180(4); 52 Am.Jur.2d, Mandamus, § 61, at p. 385.

The circuit courts shall have * * * appellate jurisdiction as provided by law.' V.A.M.S.Const. art. V, § 14. The law provides that '(a)ppeals from orders, judgments or decrees of the probate court shall be taken to the circuit court' (§ 472.200) and that circuit courts shall have '(a)ppellate jurisdiction from the judgment and orders of * * * probate courts * * * in all cases not expressly prohibited by law, * * * and a general control over * * * guardians, curators (and) minors.' § 478.070, subd. (4). We are aware of no statute prohibiting appeals from orders of a probate court adjudging a mother unfit to serve as guardian of her daughter's estate and appointing the public administrator as such guardian. To the contrary, § 472.160, subd. 1(15) states that '(a)ny interested person aggrieved thereby may appeal from the order, judgment or decree of the probate court * * * (i)n all other cases where there is a final order or judgment of the probate court under this Code except orders admitting to or rejecting wills from probate.' Section 478.070, subd. (4), supra, has been held to bestow a right to appeal from any final judgment of the probate court irrespective of the branch of that court in which the judgment is made. In re McMenamy's Guardianship, 307 Mo. (banc) 98, 122(10), 270 S.W. 662, 669(11); Baker v. Smith's Estate, 223 Mo.App. 1234, 1241, 226 Mo.App. 510, 517, 18 S.W.2d 147, 151. This latter ruling is augmented by the statutory definition (§ 472.010, subd. (5)) that the "probate code' means' Chapter 475 (guardianship), and § 475.020 which directs that '(t)he provisions of chapter 472, RSMo, unless therein restricted to decedents' estates, apply to guardianships.' We are constantly reminded that statutes providing for appeal are to be liberally construed and that all doubts are to be resolved in favor of the right of appeal. In re Dugan's Estate, Mo.App., 309 S.W.2d 137, 143(13, 14). When §§ 472.100 and 475.070 (notice to interested persons) are considered together with other mentioned statutes, we cannot escape the conclusion that a natural mother qualifies as an 'interested person' in the appointment of a guardian for her...

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12 cases
  • Corley v. Kiser
    • United States
    • Missouri Court of Appeals
    • 14 September 1977
    ... ... Landing, Inc., 536 S.W.2d 512, 515(2) (Mo.App.1976); State ex rel. Mayfield v. City of Joplin, 485 S.W.2d 473, 476(8) ... Pope v. Lisle, 469 S.W.2d 841, 842(1) (Mo.App.1971). Even ... ...
  • Estate of Seabaugh, 12669
    • United States
    • Missouri Court of Appeals
    • 8 July 1983
    ... ... him prior to his death and is a nonresident of this state." 1 ...         Having set out these findings ... The rule originated in State ex rel. Grover v. Fowler, 108 Mo. 465, 18 S.W. 968 (banc 1891) ... 10 Indeed, State ex rel. Pope v. Lisle, 469 S.W.2d 841 (Mo.App.1971), went a step beyond ... ...
  • C---- L---- R---- v. L---- B---- R----
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    • Missouri Court of Appeals
    • 16 August 1977
    ... ... State ex rel. Patterson v. Tucker, 519 S.W.2d 22, 24(1) 1975); State ex rel. Pope v. Lisle, 469 S.W.2d 841, 842(1) (Mo.App.1971). Even ... ...
  • Household Finance Co., Inc. v. Watson, 9686
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    ... ... State ex rel. Pope v. Lisle, 469 S.W.2d 841, 842(1) ... ...
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