State ex rel. St. Louis Union Trust Co. v. Sartorius

• Decision Date: 28 July 1942
• Docket Number: 37873,37874
• Citation: 164 S.W.2d 356,350 Mo. 46
• Parties: State of Missouri at the relation of St. Louis Union Trust Company, a Corporation, and Allen C. Orrick, Successor Trustees Under Deed Dated June 12, 1885, of Thomas T. Gantt and David Ranken, Trustees, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis. State of Missouri at the relation of St. Louis Union Trust Company, a Corporation, and Allen C. Orrick, Successor Trustees Under Deed Dated June 12, 1885, of Thomas T. Gantt and David Ranken, Trustees, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

164 S.W.2d 356

350 Mo. 46

State of Missouri at the relation of St. Louis Union Trust Company, a Corporation, and Allen C. Orrick, Successor Trustees Under Deed Dated June 12, 1885, of Thomas T. Gantt and David Ranken, Trustees, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis. State of Missouri at the relation of St. Louis Union Trust Company, a Corporation, and Allen C. Orrick, Successor Trustees Under Deed Dated June 12, 1885, of Thomas T. Gantt and David Ranken, Trustees, Relators, v. Eugene J. Sartorius, Judge of the Circuit Court of the City of St. Louis

Nos. 37873, 37874

Supreme Court of Missouri

July 28, 1942

Rehearing Denied September 8, 1942.

Alternative writ in cause no. 37874 quashed, and in cause no 37873 made peremptory.

Daniel N. Kirby, Harry W. Kroeger and Hord W. Hardin for relators.

(1) Mandamus is a proper remedy to control the action of an inferior court in denying to an aggrieved party the statutory right of appeal when all of the steps prescribed by the statutes have been taken. In re Campbell, 323 Mo 757. (2) The record discloses that relators took all of the statutory steps required by Sections 1171, 1184, 1186 and 1187, R. S. 1939, as prerequisites to the granting of appeals. (3) Consideration of the merits is foreign to the objects and purposes of the statutes relating to appeals. State ex rel. Speckerman v. Allen, 92 Mo. 20. (4) Relators were aggrieved by the circuit court's decree of June 19, 1941. (a) Relators held the legal title to the trust property, so that a decree which purported to divest them of such title by directing the disposition of the trust assets to and among some of the heirs to the exclusion of others injuriously affected their property interests. (b) Relators had active duties to terminate the trust in accordance with its terms, by distributing the trust property to and among all of the heirs, so that a decree which directed termination inconsistently with the terms of the trust injuriously affected relators in the performance of such duties. American Law Institute's Restatement of the Law of Trusts, secs. 226, 345, Comment J; Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 818. A trustee is not relieved of his duty to see that the trust property is distributed to the parties entitled thereto, nor absolved of his liability for an improper distribution, by the mere bringing of a suit for instructions and the entry of a decree therein, but is so relieved and absolved only when he acts in conformity with a decree which has become final, rendering the matters therein contained res adjudicata. 2 Scott on Trusts, sec. 259, p. 1467. Independently of the relators' right of appeal, the decree of the circuit court is not final, because there are pending other proceedings in mandamus for appeals and because unknown heirs brought into court by publication only have rights to file petitions for review within three years after the entry of the decree. Secs. 1247, 1248, R. S. 1939. (5) Relators were aggrieved by the circuit court's order of partial distribution entered on August 22, 1941, for the same reasons that they were aggrieved by the decree, and also for the following reasons: (a) The order of partial distribution, having been entered prior to the expiration of the term at which the circuit court's decree had been entered, was premature and beyond the jurisdictional power of the court. (b) The order of partial distribution was, in view of the circumstances disclosed by the record, excessive, and prejudicial to the protection and safety of relators in the administration of the trust estate.

William M. Fitch for Eugene J. Sartorius, respondent.

(1) The petition for mandamus fails to state facts sufficient to confer original jurisdiction on this court to issue the writ prayed for. (2) Upon the record proper in this case and the admissions made by the respondent, it appears, as a matter of law, that relator is not entitled to have mandamus issued to compel the respondent to grant the appeal denied herein by respondent. The record proper and admissions of relator herein show conclusively, as a matter of law, that relator is not aggrieved by the judgment from which appeal is sought that if appeal be granted that relator would be limited for its relief to the issues made by the record proper -- such record is now before the court. (a) Mandamus is not a writ of right. Its issuance lies in the sound judicial discretion of the court. State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891; State ex inf. Barker, Atty-General, ex rel. Kansas City, v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; High on Extraordinary Legal Remedies (3 Ed.), sec. 9. (b) The writ of mandamus is an extraordinary remedy, the granting of which rests with the sound discretion of the court, and such discretion must be exercised to deny the writ unless relator proves a clear legal right to the relief demanded. The burden of establishing such clear legal right rests upon relator. State ex rel. v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Thomas v. Williams, 99 Mo. 291, 12 S.W. 905; State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379; State ex rel. Kern v. Stone, 269 Mo. 334, 342, 190 S.W. 601. (c) The extraordinary writ of mandamus should not be granted to relator in this case because relator has two statutory remedies open, each of which would afford the Administrator complete relief: (1) under Section 1189, R. S. 1939, which provides that the appellant may present the record, together with his assignment of errors, to a judge of the Supreme Court, which judge is empowered to grant the appeal upon a prima facie showing so made; and (2) under Section 1200, R. S. 1939, the Administrator, relator here, had the statutory right to prosecute his writ of error in the Supreme Court, for the purpose of reviewing all proceedings in said controversy, whether the errors complained of arise on the record proper or on exceptions preserved during the trial of such issues. A writ of error is a writ of right, and the Administrator had that remedy available as a matter of right. He therefore has no right in this case to relief under the extraordinary remedy of mandamus. State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Tate v. Sevier, 334 Mo. 771, 66 S.W.2d 50; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; State ex rel. Herriford v. McKee, 150 Mo. 233, 51 S.W. 421. (d) The writ of mandamus will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful, for the court will not compel the performance of a vain or unlawful act. State ex rel. Cranfill v. Smith, 330 Mo. 256, 48 S.W.2d 891; State ex rel. Wilcox v. Draper, 50 Mo. 24; Harrington v. Denny, 3 F.Supp. 584; Foster v. Mansfield, C. & L. M. R. Co., 146 U.S. 88, 36 L.Ed. 899; Gilbert v. Auster, 135 Wis. 581, 116 N.W. 177; Rust v. Conrad, 47 Mich. 449, 11 N.W. 265; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886; Ferris on Extraordinary Legal Remedies, secs. 196, 204. (e) The appellate court will not by mandamus compel the judge of the trial court to grant an appeal which he has refused, where it appears on the face of the record proper and the admissions of the parties that the appeal applied for could give appellant no relief if appeal be granted. State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379, 40 S.W. 942; State ex rel. Fischer v. Vories, 333 Mo. 197, 62 S.W.2d 457; Hatch v. Frazer, 138 Mich. 184, 101 N.W. 228; Harrison v. McCabe, 10 Kan.App. 194, 63 P. 277; State ex rel. Culbertson Ferry Co. v. District Court, 49 Mont. 595, 144 P. 159; State v. Still, 178 Ala. 442, 59 So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dobson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L.Ed. 1036, 46 S.Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (3) When respondent, as judge, denied the appeal of relator in this cause the relator was then put upon his allegation of remedies. Among those remedies were at least three. (a) The first remedy was by appeal under Section 1189, R. S. 1939. Under said section relator may have presented so much of the record proper or the exceptions arising under the record as he may have deemed appropriate to a judge of this Honorable Court, together with errors assigned by the appellant, for the appeal. Said section vests power in either one of the seven judges of this Honorable Court to inspect the application for appeal, the record and the assignments of error, and if he deems probable error was committed prejudicial to such applicant, then such judge is authorized by certificate to grant the appeal so prayed for and is authorized to fix the appeal bond, etc. (b) Under Sec. 1200, R. S. 1939, the relator had the right to sue out his writ of error from the Supreme Court. Such writ was a writ of right. The relator, under said section, could proceed in said appeal at any time within one year. (c) The remedy was by application made to this Honorable Court for its writ of mandamus, for the purpose of compelling by such mandamus that the appeal be granted which was denied relator by respondent. This remedy was chosen by relator here. Proceedings under mandamus, if relator be successful, would require the appeal ultimately to be granted, which relator might have obtained directly if he were aggrieved by the judgment complained of, without delay, and if he had proceeded under Sec. 1189 or Sec. 1200, supra, an appeal compelled by mandamus would afford no other or greater relief than appeal under ...