State ex rel. Thompson v. Nortoni

• Citation: 191 S.W. 429,269 Mo. 563
• Parties: THE STATE ex rel. J. E. THOMPSON, Judge of Probate Court, v. ALBERT D. NORTONI et al., Judges of St. Louis Court of Appeals
• Decision Date: 17 January 1917
• Court: United States State Supreme Court of Missouri

191 S.W. 429

269 Mo. 563

THE STATE ex rel. J. E. THOMPSON, Judge of Probate Court, v. ALBERT D. NORTONI et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

January 17, 1917

Record quashed.

W. C Hughes, Jones & Hayden, Hostetter & Haley and Pearson & Pearson for relator.

(1) The St. Louis Court of Appeals' action and decision, in so attempting to control and direct relators' judicial acts and discretion, is outside of, and beyond its jurisdiction and in direct conflict with not only the last two controlling decisions of the Supreme Court, to-wit; State ex rel. v Holtcamp, 185 S.W. 204, and State ex rel. v Wurdeman, 187 S.W. 259, but also four others of a more remote date, to-wit; State ex rel. v. St. Louis Court of Appeals, 87 Mo. 376; State ex rel. v. McGowan, 89 Mo. 157; State ex rel. v. Allen, 92 Mo. 24; State ex rel. v. Broaddus, 207 Mo. 121; and one decision of the St. Louis Court of Appeals, to-wit; In re Estate of Evans, 117 Mo.App. 635. (2) A judicial act or discretion cannot be controlled or directed by a writ of mandamus. State v. Holtcamp, 185 S.W. 204; State v. Wurdeman, 187 S.W. 269. (3) Errors cannot be corrected by mandamus. The judgment of the probate court of Pike County might not have been correct; and it doubtless was not such a judgment as the St. Louis Court of Appeals would have rendered in an original proceeding before it; but, this did not give the St. Louis Court of Appeals the right, or jurisdiction, to either review or correct said judgment. In re Breck, 252 Mo. 327; State ex rel. v. Johnson, 138 Mo.App. 313.

Ed. Corwine, D. A. Ball and Richard H. Norton for respondents.

(1) Relator has no interest in the subject-matter of the litigation and is not a proper party to maintain certiorari. R. S. 1909, sec. 1729; State ex rel v. Staten, 187 S.W. 44; Davison v. Otis, 24 Mich. 25; People v. Leavitt, 41 Mich. 470; Blodgett v. McVey, 131 Iowa 552; Colden v. Botts, 12 Wen. 234. The same rule is established in the law of mandamus which is analogous in this respect to the law of certiorari. High, Extra. Rem. (3 Ed.), sec. 33; State v. Commissioners, 4 Kan. 261; Mossy v. Harris, 25 La. Ann. 623; Gregory v. High, 29 Ind. 527; People v. Board, 18 Barb. 567. A writ of certiorari is a new suit. It is not a part of the old action, but resembles in nature a writ of error, which is an entirely new proceeding, independent of the case which it reviews. Macklin v. Allenburg, 100 Mo. 343. (2) But under the probate law, especially the first part of Sec. 15, R. S. 1909, there is no discretion vested in the probate judge when the party applying for administration is not within the disqualifications of section 14. R. S. 1909, secs. 14-15; State v. Thompson, 187 S.W. 804; State v. Collier, 62 Mo.App. 38. (3) Relator is not entitled to maintain this writ of certiorari under the provisions of the Constitution (Amendment 1884, sec. 6) without applying first to the Court of Appeals for a transfer of the cause to the Supreme Court upon the ground of conflict with some of its decisions, or with some previous ruling of the other Courts of Appeals. Constitution, Amendment 1884, sec. 6; Nichols v. Court, 1 Mo. 357; State v. Court, 41 Mo. 598. (4) The opinion of the Court of Appeals in the mandamus case against the relator is not in conflict with any decision of the Supreme Court or of the Courts of Appeals, but on the contrary is in harmony with those cited on that subject by learned counsel for relator. Mandamus has a familiar jurisdiction to compel officers charged with a definite duty, either by statute or other law, to obey that law and to perform that duty. It is available also to correct abuse of discretion where there is discretion; as where a court is bound by law to a certain duty, but refuses to perform it, without evidence to warrant its refusal. State v. Collier, 62 Mo.App. 38; State v. Thompson, 187 S.W. 804; Hall v. Court, 27 Mo. 329; State v. Rombauer, 44 Mo. 590; State v. Lewis, 76 Mo. 370; State v. Fraker, 166 Mo. 130; State v. Court, 41 Mo. 221; McCleary v. Adsock, 206 Mo. 550; State v. Cook, 187 S.W. 1122. (5) Even if the subject of a waiver of the right to administer could be made an issue (which we deny) as to persons under the first class mentioned in Sec. 15, R. S. 1909, namely, "the husband or wife," upon application for letters testamentary, the record here discloses that there is no testimony of any agreement by Mrs. Scanland which would constitute such a waiver under the laws and decisions in Missouri. R. S. 1909, sec. 362; Perry v. Perryman, 19 Mo. 469; Johnson v. Johnson, 23 Mo. 561; Mack v. Heiss, 90 Mo. 578; Farris v. Coleman, 103 Mo. 361; Rice v. Waddill, 168 Mo. 113; Morgan v. Stewart, 173 Mo. 207; King v. King, 184 Mo. 99; Lowe v. Lowe, 146 S.W. 100.

GRAVES, C. J. Bond, J., dissents.

OPINION

In Banc.

Certiorari.

GRAVES C. J.

Certiorari to the St. Louis Court of Appeals. The pertinent facts are few and simple. Charles B. Scanland died in Pike County, Missouri, May 31, 1916. Shortly thereafter the widow Anna Estella, applied for letters of administration upon the estate. Relator herein was and is the probate judge of Pike County. Objections were interposed as to the appointment of the widow as administratrix. In the course of the investigation it appeared from the evidence that there was an ante-nuptual agreement between the deceased, and the widow. The probate court refused to appoint the widow as administratrix, and in his findings and judgment, among other things, found and adjudged:

"The court doth further find from the evidence that the deceased and the applicant, Anna Estella Scanland, just before their marriage, entered into and executed a marriage contract by the terms of which the applicant agreed and contracted to receive a stipulated sum of money before their said marriage and an annual stipulation thereafter during said marriage or so long as the said applicant should continue the wife of deceased, in lieu of all marital rights in the estate of deceased, and thereby relinquish all right or interest in the estate of the decedent. . . .

"And the court doth further find and adjudge from the evidence that the applicant waived any right she might otherwise have to administer up on the estate of the deceased by and through the marriage contract by her and the decedent executed and entered into previous to their marriage.

"Wherefore the application of the said Anna Estella Scanland to be appointed administratrix of the estate of the said Charles B. Scanland, deceased, is denied and refused by the court."

The probate judge then appointed the public administrator to take charge of the estate. Thereupon the said Anna Estella Scanland brought mandamus proceedings in the St. Louis Court of Appeals to compel the relator here, as probate judge of Pike County, to appoint her as administratrix of her husband's estate.

The relator here, among other things, in his return set up in the Court of Appeals his judgment theretofore entered in the probate court, the material portions of which we have quoted supra. The St. Louis Court of Appeals, notwithstanding the return aforesaid, granted the writ of mandamus, directing relator here to vacate his order appointing the public administrator as administrator of the estate, and further directing him to appoint Anna Estella Scanland as administratrix of such estate. As against this judgment and the opinion upon which it is predicated our writ of certiorari is invoked. Other matters will be noted in the course of the opinion.

I. It is urged in the first place that the relator has no such interest in the controversy as entitles him to invoke our writ of certiorari. This position of counsel is untenable. The proceeding in the St. Louis Court of Appeals was one against the relator here and none other. The writ issued in that case was directed against him, and none other. The judgment entered in that case was against him and none other. It would be a very singular condition if it could be said that the respondent in a mandamus proceedings is so interested that he is made the sole party, and then after judgment against him his interest at once vanishes so that he cannot question the validity of that judgment on certiorari. In other words, his interest is such that he is the necessary party to the suit, yet when he is beaten in the suit, his interest vanishes so that he cannot gainsay the validity of the record upon which the judgment against him is founded. This is one of the contentions here. It is untenable absolutely. When a party has such an interest in a controversy, that under the law he must be made a party thereto (in this case the sole party thereto) for a determination of the controversy, it should not be said that he has not sufficient interest (after judgment against him) to invoke our writ of certiorari, and thereby test the validity of the judgment. In the particular case, if relator could not question the judgment, no other person could, because he was the sole respondent in the mandamus proceeding, and any other party would be a stranger to that record. We are cited to State ex rel. v. Reynolds, 190 Mo. 578, 89 S.W. 877, but that case touches no part of the question.

It is urged that the suing out of a writ of certiorari is a new action, and we are cited to Macklin v. Allenberg, 100 Mo. 337, 13 S.W. 350. That case discusses a writ of error rather than a writ of certiorari, but this is immaterial. Grant it that the suing out of the writ is a new action, the situation as to interest is not changed. The purpose of the new action, so far as this relator is concerned, is to rid himself of a judgment against him. If he hasn't an interest in that judgment no person has, because he is the sole person against whom the...