State ex rel. Terry v. Holtkamp

• Decision Date: 03 June 1932
• Docket Number: No. 31793.,31793.
• Citation: 51 S.W.2d 13
• Parties: STATE OF MISSOURI EX REL. EDWARD W. TERRY, Public Guardian of the County of St. Louis and Guardian in Charge of the Estate of HUGH W. THOMASSON, Relator, v. CHARLES W. HOLTKAMP, Judge of the Probate Court of the City of St. Louis.
• Court: Missouri Supreme Court

51 S.W.2d 13

STATE OF MISSOURI EX REL. EDWARD W. TERRY, Public Guardian of the County of St. Louis and Guardian in Charge of the Estate of HUGH W. THOMASSON, Relator, v. CHARLES W. HOLTKAMP, Judge of the Probate Court of the City of St. Louis.

No. 31793.

Supreme Court of Missouri, in Banc.

June 3, 1932.

Prohibition.

PRELIMINARY RULE QUASHED.

Robert B. Denny, Wurdeman, Stevens & Hoester and Joseph A. Falzone for relator.

(1) The Probate Court of St. Louis County, Missouri, a court of co-ordinate jurisdiction to respondent's court, having on November 27th appointed a guardian for the person now accused (Thomasson) and put on inquiry as to his sanity in respondent's court, said accused not having been served with process in the proceedings pending in respondent's court at the time of said judgment, respondent is without power and jurisdiction to entertain the cases pending before him, the nature of the action being the same, and against the same person. State ex rel. Davis v. Ellison, 208 S.W. 438; State ex rel. v. Littrell, 26 S.W. (2d) 768; Aetna Life Ins. Co. v. Knehaus, 31 S.W. (2d) 226. (2) Probate courts of Missouri have only such powers as are conferred by statute, and have no inherent power. State ex rel. v. Holtcamp, 14 S.W. (2d) 646; Peck v. Fillingham, 199 Mo. App. 285. Our statutes provide for orders of publication to issue to defendants in civil causes under the provisions of Section 739, R.S. Mo. 1929, and the causes of action in which service may be obtained by publication are limited to actions in rem, and are enumerated therein and do not include proceedings such as the ones pending in respondent's court, to-wit, actions "in persona." R.S. 1929, sec. 739. (3) Respondent, Holtcamp, continued to carry on proceedings in both cases in his court after the issuance of the preliminary rule in prohibition against him issued out of Judge HARTMANN'S court (Circuit Court, Division No. 3 of the City of St. Louis) which preliminary writ was issued November 12, 1931, and to which this respondent made his return on November 18, 1931, and did thereafter on November 21st and 27th issue the "Alias Notices" of hearing to the accused Hugh W. Thomasson for a hearing in his court on December 7, 1931, and did proceed further by setting said cases for trial in his court on February 19, 1932, and re-setting same for February 24, and again for March 17, 1932, while said preliminary writ was still in force and effect. Respondent was without power or authority to make any order while said preliminary rule was in force. State ex rel. v. Rassieur, 190 S.W. 915; State ex rel. v. Landis, 173 Mo. App. 198. (4) No remedy by appeal from the threatened judgment in respondent's court could be adequate or sufficiently speedy, therefore prohibition should be the proper remedy. State ex rel. v. Denton, 128 Mo. App. 304; State ex rel. v. Withrow, 133 Mo. 500; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Fort, 178 Mo. 518.

Taylor R. Young, S.A. Boggiano and Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) Proceedings before Judge HOLTCAMP are the senior proceedings. The court should keep clearly in mind that the proceeding which this writ of prohibition is sought to stop was instituted on the 7th day of October, 1931, long prior to the institution of any proceedings in St. Louis County. It was the first or senior case. Said senior proceeding had been pending in court continuously from that day to this and personal service has been had upon the said Thomasson in due form on November 28, 1930. The Probate Court of the city of St. Louis had begun exercising jurisdiction over the proceedings long before Terry was appointed guardian and long before the Probate Court of St. Louis County had any proceeding pending before it, and for clarity we call the St. Louis County proceedings the "junior case" and the Holtcamp proceedings the "senior case." Section 448, R.S. 1929, requires the Probate Court to exercise its judicial function, and when an information is filed decide judicially whether or not there is good cause for instituting proceedings, and when jurisdiction attaches in insanity proceedings is determined by the date when the information is filed, not the date of service of process. This is clear from a reading of the terms of Section 448 of the Statutes. Such is the general holding of the courts. In Porter v. Ritch, 70 Conn. 235, 39 Atl. 169, 39 L.R.A. 353, the question as to when jurisdiction first attaches in an insanity proceeding was very fully discussed, and it was there held that the proceeding was pending and the court had jurisdiction from the moment the information was filed. In that case the court said: "The proceeding was the inquiry by the court as to the sanity or insanity of the person complained of. It was an inquest of insanity. It was in the nature of a police regulation for the care and restraint of a person insane or supposed to be insane. The proceeding was commenced when the court received the written complaint. So far as the court of probate was concerned, the proceeding was then pending. Any proceeding once commenced in any court in the regular way is pending in the court until it is in some way terminated (Webster, Dict.). Until it is terminated the proceeding is in suspense; it is depending. [Wentworth v. Farmington, 48 N.H. 207; Littlefield v. Delaware & H. Canal Co., 3 Cliff. 37.]" The statute in Missouri (Sec. 724) relating to the time when civil actions are deemed commenced expressly declares that they shall be deemed commenced and pending from the time of the filing of the petition or information. (2) The petition of relator in the present case and the petition filed by relator before Judge HARTMANN affirmatively show relator is not entitled to relief. In one of the previous cases relators cited State ex rel. Buckner v. Ellison, 277 Mo. 294, in support of the proposition that the action of Judge HARTMANN in annulling the original judgment could not be taken advantage of in a proceeding by prohibition. We have no quarrel whatever with the Buckner case. In that case no judgment was annulled. The question there was the order in which two record entries should appear upon the books of the clerk and the court, by nunc pro tunc order, transposed the record, so that a portion showing a dismissal as to one defendant appeared after a portion which showed a directed verdict for the defendant. This is far from annulling an original judgment. When the order nunc pro tunc was made in the Buckner case it was still a pending case, and a motion had been filed asking for the order transposing the record entries. Evidence was offered in the Buckner case, and, of course, that feature, as well as the fact that the case was still pending, all the parties in court, and that a motion had been filed and the entry made pursuant to a motion, so materially distinguishes the Buckner case from the present case that the Buckner case has not the slightest bearing upon the action of Judge HARTMANN in annulling a judgment without any motion after the lapse of the term and the absence of any notice to the parties in interest. After the term the court has no power to set aside a judgment, to correct a clerical error, since the power to amend does not embrace the power to annul. 1 Freeman on Judgments (5 Ed.) sec. 173. In Hottelet v. Von Cotzhausen; Fishbeck v. Milens, 162 Wis. 12, 154 N.W. 701, the court states the rule which is so well established, as to amount to an axiom. That learned court, stating the settled rule, said: "The rule does not permit the setting aside of the judgment first entered and the entry of a new one, but only the correction of it. No power exists to set aside the whole judgment for the purpose of correcting a clerical error. The power to amend does not include the power to wipe out. It follows that Judge WILLIAMS had no power to set saide the 1911 judgment, or to enter a new one in lieu thereof, and that the order setting aside the former judgment is a nullity, and the judgment entered in 1914 was absolutely void." There is, then, as a matter of law no case pending before Judge HARTMANN or his successor. The entry is wholly insufficient to vacate the former's judgment and give the case the status of a "pending case." Hence, the sole basis for petitioner's contention does not exist as a matter of law. There is no pending case. Where the facts are clear and undisputed and clearly fails to make a prima facie case for the writ, is it not the settled rule to deny the preliminary writ? Should this rule be ignored because the relator desires to prevent Judge HOLTCAMP from hearing the true facts? Surely not. In Wetmore v. Karrick, 205 U.S. 141, 51 L. Ed. 745, it was held that: "A court which, acting under the erroneous belief that no action had been taken in a cause within a year, renders a judgment of dismissal, cannot, consistently with due process of law, set aside such judgment after the term, or the rule day which, under the local practice, is equivalent to the end of the term, without motion or proceedings to vacate the judgment, and without notice." In this State, as well as in many other states, an amendment nunc pro tunc can be made only on information furnished by the records or files in the case. The amendment must be based on matters of record and "matters of record" usually means some minute written by the judge on his docket. Hyde v. Curling, 10 Mo. 363; Gibson v. Chouteau's Heirs, 45 Mo. 171; Gamble v. Daugherty, 71 Mo. 599; Railway v. Holschlag, 144 Mo. 253; Evens v. Fisher, 26 Mo. App. 546; Fletcher v. Coombs, 58 Mo. 430; Robertson v. Neal, 60 Mo. 579. "After the end of the term at which a final judgment was rendered, defendant is no longer in court for any purpose connected with such judgment."

WHITE, J.

Edward W. Terry, Public Administrator and ex-officio public guardian of St. Louis County, seeks by prohibition in this court to restrain Judge HOLTKAMP from proceeding with an...