State ex rel. Tempel v. Garesche
| Decision Date | 05 February 1918 |
| Citation | 200 S.W. 735,198 Mo.App. 457 |
| Parties | STATE ex rel. ANNIE M. TEMPEL and GUSTAVE A. TEMPEL, Executors of the Estate of THEODORE H. TEMPEL, Relators, v. VITAL W. GARESCHE, Judge of the Circuit Court, City of St. Louis, Respondent |
| Court | Missouri Court of Appeals |
Writ quashed.
D. J O'Keefe and Rippey & Kingsland for relators.
(1) Probate courts in this State are vested with exclusive original jurisdiction to settle the accounts of executors and administrators. Art. 6, sec. 34, Const. of Mo.; Secs. 2292 4056, R. S. 1909. (2) Circuit courts have no jurisdiction at law to allow attorney's fees for services in behalf of an estate in the course of administration for the reason that the liability for such services are but expenses of administration and not such demands as may be established by a judgment at law in a circuit court. 2 Woerner on Administration, sec. 356, p. 819; Garnett v. Carson, 11 Mo.App. 290; Stephens v. Cassity, 104 Mo.App 210; Gurnee v. Maloney, 38 Cal. 85; Youngston v. Bond, 69 Neb. 356; State ex rel. O'Brien v. Walsh, 67 Mo.App. 348. (3) Circuit courts cannot assume jurisdiction in equity to adjust and enforce payment for expenses of administration out of the assets of the estate, unless special equitable circumstances appear rendering the remedy afforded in the probate courts inadequate. French v. Stratton, 79 Mo. 560; Pearce v. Calhoun, 59 Mo. 271; Matson & May v. Pearson, 121 Mo.App. 120; Nichols v. Reyburn, 55 Mo.App. 1; Yeakle v. Priest, 61 Mo.App. 47.
T. D. Cannon and F. C. O'Malley for respondent.
(1) (a) The circuit court of St. Louis is a court of general jurisdiction and has jurisdiction to hear and determine the issues arising in the case of Cannon v. Tempel, executors; prohibition should be denied. State ex rel. Bernero v. McQuillen, 246 Mo. 517, 532. (b) A writ of prohibition cannot be made to perform the functions of an appeal or writ of error. Its purpose is not to review and correct errors but to prevent the usurpation of judicial authority. State ex rel. v. Kimmel, 183 S.W. 651, 652. (2) Circuit courts in this State have jurisdiction to hear and determine an action against the estate of a deceased person, by an attorney at law, brought for the purpose of establishing a demand for professional services, rendered by him, under the employment of the Executor or Administrator for the benefit of the estate. Section 197, R. S. 1909; Nichols v. Reyburn, 55 Mo.App. 1; Matson et al. v. Pearson, 121 Mo.App. 120; Bank v. Clifton, 263 Mo. 200.
ALLEN
Original Proceeding in Prohibition.
ALLEN J.--This is an original proceeding in prohibition. The relators, executrix and executor of the estate of Theodore H. Tempel, deceased, presented to one of the judges of this court, in vacation, a petition praying for a writ of prohibition against the respondent judge to prohibit him from further entertaining jurisdiction of a certain cause pending before him, wherein Thomas D. Cannon, Esq., attorney at law, is plaintiff, and these relators are defendants. A preliminary writ was issued to which the respondent duly filed his return; and the cause has been argued and submitted to us as upon a demurrer to the return.
The conceded facts are as follows:
The estate of Theodore H. Tempel, under whose will the relators are executrix and executor, is in process of administration in the probate court of the county of St. Louis. On September 14, 1917, Thomas D. Cannon instituted the action mentioned above, in the circuit court of the city of St. Louis, against the relators in their representative capacity, to recover attorneys' fees for legal services alleged to have been rendered to the said estate at the instance and request of relator Annie M. Tempel. The petition prays judgment in the said sum of $ 754, the alleged reasonable value of the services, and for an order directing the defendants therein to pay such sum to plaintiff out of the funds of the estate in their hands. Thereafter that proceeding came before the respondent judge, sitting in Division No. 14 of said circuit court, and he was proceeding to entertain jurisdiction therein when halted by the issuance of our preliminary rule in prohibition.
The question before us, therefore, is whether the proceeding pending in the circuit court of the city of St. Louis, mentioned above, is one within the jurisdiction of that court. It is argued in behalf of the relators herein that the probate court, wherein an estate is being administered, is vested with exclusive original jurisdiction to make allowances for attorneys' fees for legal services rendered the estate at the instance of the executor or administrator; that such fees are a part of the expenses of administration, to be allowed as such by the probate court in settling accounts of the executor or administrator, and are not demands against the estate within the meaning of section 197, Revised Statutes 1909; and that consequently the circuit court has not concurrent jurisdiction with the probate court to establish a claim of this character as a demand against the estate. The questions thus raised have frequently been before our courts.
In Nichols v. Reyburn, 55 Mo.App. 1, this court upon the authority of Gamble v. Gibson, 59 Mo. 585; State ex rel. Ziegenhein v. Tittmann, 103 Mo. 553, 565, 15 S.W. 941; Powell v. Powell, 23 Mo.App. 365, and other decisions cited, held that the claim of an attorney for legal services rendered at the instance of an administrator, and beneficial to the estate, was a proper subject of a demand directly against the estate; and that the circuit court had original jurisdiction of an action to establish such demand. And the ruling in that case to the effect that a claim of this character may be made the subject of a demand against the estate has been followed by this court in the following cases, viz.: Yeakle v. Priest, 61 Mo.App. 47, 51; Matson & May v. Pearson, 121 Mo.App. 120, 97 S.W. 983; Mayhall v. Stoecker, 191 S.W. 1117. There is an early decision of our court to the contrary, viz., that in Garnett v. Carson, 11 Mo.App. 290, but it has not been followed.
In State ex rel. O'Brien v. Walsh, 67 Mo.App. 348, the Kansas City Court of Appeals, following Nichols v. Reyburn, supra, held that the probate court is clothed with jurisdiction to allow an attorney's claim for legal services directly in his favor, and to order its payment out of the assets of the estate. However, in Stephens v. Cassity, 104 Mo.App. 210, 77 S.W. 1089, that court without reference to the Walsh case or the prior decisions of this court, supra, held to the contrary. Referring to the ruling in the Stephens case, this court in Matson & May v. Pearson, supra, 121 Mo.App. 134, 97 S.W. 983, said:
It will be seen therefore that relators' contention that a claim of this character cannot be made the subject of a demand against an estate,...
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