State ex rel. Reis v. Nangle
| Citation | 349 S.W.2d 508 |
| Decision Date | 19 September 1961 |
| Docket Number | No. 30796,30796 |
| Parties | STATE of Missouri ex rel. Robert C. REIS, Administrator D.B.N. of the Estate of Jake Novich, Relator, v. Honorable James F. NANGLE, Judge, Circuit Court of the City of St. Louis, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Robert C. Reis, St. Louis, for relator.
Bernard J. Mellman, St. Louis, for respondent.
BRADY, Commissioner.
This is an original proceeding upon a petition seeking an alternative writ of mandamus. The petition alleged that Robert C. Reis, hereinafter referred to as the petitioner, is the duly appointed and acting administrator de bonis non of the estate of Jake (Jacob) Novich, whose estate is pending in the probate court of the City of St. Louis; that, acting in such capacity, he filed exceptions to the annual settlements and Settlement to Revocation filed by one Cecil Block, former administrator of this estate; and that the probate court appointed a special commissioner to hear such exceptions. The petition further alleges that the probate court, upon receiving the special commissioner's report, entered the following judgment on petitioner's exceptions:
'It is further ordered by the Court that said former administrator, Cecil Block, and his surety, Maryland Casualty Company, pay said judgment in the sum of $14,055.05 to Robert C. Reis, Administrator De Bonis Non, of this estate.'
Petitioner then alleged that he did not take any appeal from this judgment but that Block and his surety filed their notice of appeal from this judgment; that the respondent, upon being assigned the appeal for trial, appointed a referee to take testimony and evidence in connection with this appeal; and that Block and his surety filed a motion to limit the evidence which the referee was to hear. This motion stated that Block's appeal was from the probate court's order overruling his exceptions to the report and findings made by the special commissioner appointed by the probate court, and also was from the probate court's order sustaining the portion of the exceptions filed by the petitioner. The motion then set out that the order of the probate court also denied and overruled certain other exceptions filed by the petitioner and stated that the petitioner filed no notice of appeal from those rulings. The motion alleged that the petitioner had sought to introduce evidence pertaining to the objections which he filed in the probate court from the ruling upon which he filed no appeal, and alleged that these matters were res adjudicata and not material nor relevant to the issues pending in the circuit court. The petitioner alleges further that such a motion was sustained by the respondent and that such action by respondent is 'without authority in law' because it was respondent's duty to hear and determine the cause anew without regard to any error or defect or other imperfection in the proceedings of the probate court; that because of the trial court's ruling on Block's motion, the 'entire action' cannot be heard again, as required by Sec. 472.250 RSMo 1949 (now Sec. 472.250 RSMo 1959) V.A.M.S.; and that the petitioner does not have a plain, speedy and adequate remedy at law. Petitioner prayed for the issuance of our alternative writ compelling respondent to vacate his order limiting the evidence to be heard by the referee.
Upon receipt of the petition we entered our order granting petitioner leave to file without complying with the five days notice required by Rule 83.22, Missouri Rules of Civil Procedure, V.A.M.R., and allowed respondent five days in which to file suggestions in opposition to the issuance of the writ, and later granted an extension of time. Upon respondent's suggestions in opposition being filed, we granted the petitioner five days to reply thereto, and upon these being filed we duly considered the suggestions of the parties and determined that our alternative writ should issue. The respondent waived the service of the alternative writ and filed his return thereto by which he admitted, denied and alleged: that petitioner is the duly appointed administrator of the estate of Jake Novich; that while the judgment of the probate court was as set out in the petition and as quoted herein, the report of the special commissioner '* * * sustained certain of the exceptions of relator and overruled others of such exceptions'; that prior to the ruling of the provate court, the petitioner filed certain exceptions to rulings which were adverse to him; and that the probate court entered its order overruling all of Block's exceptions and entered another order overruling all but two of the petitioner's exceptions, which two were sustained. The respondent has attached certified copies of the orders of the probate court to his suggestions filed in opposition to the issuance of our alternative writ, and incorporated these in his return by specific reference thereto. The return admitted that petitioner filed no appeal from the judgment of the probate court and that Block and his surety had done so, but stated that their appeal was specifically and only from the probate court's order overruling Block's exceptions, sustaining two of the petitioner's exceptions and ordering Block to pay $14,055.05. A certified copy of the appeal taken by Block was attached to the suggestions of the respondent and incorporated in the return by specific reference thereto. The respondent's return then admitted that the motion to limit evidence before the referee appointed by the respondent was filed as petitioner alleged, but stated that this was because the petitioner had sought in the referee's hearings to introduce evidence upon petitioner's exceptions to the findings of the probate court's special commissioner which the probate court had overruled and from which ruling the petitioner filed no appeal to the circuit court, and that the respondent sustained this motion and stated that respondent's jurisdiction is limited to those matters which were litigated in the probate court and from which decision an appeal was taken to the circuit court, and that he has no jurisdiction to review those orders of the probate court from which petitioner did not take an appeal. Respondent further alleged that petitioner has an adequate remedy at law, and prayed for our order setting aside and dissolving our alternative writ and that we dismiss the petition.
The only other pleading filed was entitled 'Relator's Motion for Peremptory Writ of Mandamus' by which the petitioner stated that the respondent's return did not 'set forth facts sufficient to constitute a defense to said writ.' We set the case for hearing and at our May docket, by stipulation of the parties and with our leave, the matter was submitted on the pleadings and suggestions previously filed.
As was stated in State ex rel. Priest v. Gunn, et al., Mo., 326 S.W.2d 314, local citation page 328 [15-19], Secs. 529.010-529.030 RSMo 1949, now Secs. 529.010-529.030 RSMo 1959, V.A.M.S., prescribe the pleadings in mandamus and are much the same in substance and even in wording as in the Statute of Anne (9 Anne C. 20, Year 1710). These sections provide for (a) a return to the alternative writ (Sec. 529.010, supra); (b) a pleading to or traverse of 'all or any of the material facts contained in' the return (Sec. 529.020, supra); and (c) a reply or other pleading taking issue with (b) or a motion directed thereto (Sec. 529.030, supra). Ordinarily the alternative writ is the first pleading but here, as in the Gunn case, the petition was treated as the alternative writ and the return directed thereto. In the instant case, the petitioner directed a motion to the return which was in the nature of a motion for judgment on the pleadings and admitted all the facts well pleaded in the return. State ex rel. Gehrig v. Medley, Mo.App., 28 S.W.2d 1040, State ex rel. Evans v. Stahlhuth, Mo.App., 183 S.W.2d 384.
Mandamus issues only where a clear and specific right is to be enforced or a duty ought to be, and can be, performed; there is no other specific and adequate legal remedy; and the right to be protected is clearly established, State ex rel. Coffman v. Crain, Mo.App., 308 S.W.2d 451. Under modern procedure it is not a writ of right, and should be issued only in the exercise of our sound discretion, State ex rel. Huskey v. Eversole, Mo.App., 177 S.W.2d 654; State ex rel. Continental Oil Co. v. Waddill, Mo., 318 S.W.2d 281; and so we must first determine whether mandamus is the proper remedy in this case.
The respondent first contends that mandamus is not the proper remedy because the setting aside the respondent's order limiting the evidence to that pertaining to Block's appealed exceptions is not a ministerial act but is an act anecessarily involving the exercise of judicial discretion in determining what evidence is, or is not, relevant to the matter before it. This contention is without merit. In State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009, at local citation pages 1010-1011, [2, 3-5], the court said:
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