State ex rel. Townsend v. Mueller.
| Decision Date | 03 June 1932 |
| Docket Number | No. 31734.,31734. |
| Citation | 51 S.W.2d 8 |
| Parties | STATE OF MISSOURI EX REL. ELMIRA TOWNSEND ET AL., Relators, v. FRED E. MUELLER, Judge of the Circuit Court of St. Louis County, Division Number Three. |
| Court | Missouri Supreme Court |
(1) The proceedings in the Probate Court of St. Louis County take on the form and character of the abuse of judicial power and must be treated as extra-jurisdictional, because: (a) The notice issued for service upon the alleged insane person, Thomasson, is the same as a summons in an ordinary civil suit, and in this case the service was not made by a sheriff or any other proper officer, or by the person to whom directed, but by one Leritz, a private individual associated in service with McBride and Grace Caroline Thomasson. State ex rel. Finch v. Duncan, 193 S.W. 950; Skelly v. Maccabees, 217 Mo. App. 340; Burke v. McClure, 245 S.W. 64; State ex rel. v. Duncan, 195 Mo. App. 541; State ex rel. v. Duncan, 195 Mo. App. 554. (2) The proceedings in the Probate Court of St. Louis County take on the form and character of the abuse of judicial power and should be treated as extra-judicial, because; (a) Proceedings were first begun in the Probate Court of the City of St. Louis, and that court begun exercising jurisdiction over the proceedings before the Probate Court of St. Louis County had attempted to take jurisdiction. (b) At the time the Probate Court of St. Louis County attempted to adjudicate the question of Thomasson's insanity it had no jurisdiction to do so because of the pendency of the habeas corpus proceeding in the St. Louis Court of Appeals, as well as the pendency of the proceedings before the Probate Court of St. Louis City. State ex rel. v. Reynolds, 209 Mo. 189; In Re Ingenbohs, 173 Mo. App. 261. (3) The proceedings in the Probate Court of St. Louis County cannot be urged by Terry, guardian, etc., to give that court jurisdiction, because: (a) The St. Louis Circuit Court has adjudicated that the proceedings pending before the St. Louis Probate Court gave that court jurisdiction, and such holding excludes any jurisdiction in the Probate Court of St. Louis County. (b) The judgment denying prohibition is final and operates as an estoppel against Terry and constitutes res judicata. Coleman v. Dalton, 71 Mo. App. 21; White v. Fresno Natl. Bank, 32 Pac. 979; Kansas City v. St. L. & Kansas City Land Co., 260 Mo. 395; Kansas City v. St. L. & Kansas City Land Co., 241 U.S. 419; In re Breck, 252 Mo. 302. A judgment refusing a writ of mandamus or other prerogative writ is effective as a bar to any further litigation based upon the same right of recovery; in such litigation it is conclusive of every matter which was or might have been urged in support of the previous proceeding. Louis v. Brown, 109 U.S. 162; Santa Cruz Co. v. Supervisors, 62 Cal. 40; Correia v. Supreme Lodge, 218 Mass. 305, 105 N.E. 97. The denial of a petition for writ of certiorari or review is as effectually an estoppel as a formal judgment upon issues of fact, where the petition presents substantially the same matters that would have been certified to the court had a preliminary writ issued. 2 Freeman on Judgments (5 Ed.) p. 1758, sec. 826; Napa Valley Elec. Co. v. Railroad Com., 251 U.S. 366, 64 L. Ed. 310, 40 Sup. Ct. Rep. 174. Similar principles govern judgments in quo warranto cases and proceedings by certiorari or for writ of prohibition, the adjudication in the latter being conclusive of jurisdiction in the proceedings attempted to be prohibited. 2 Freeman on Judgments (5 Ed.) 1757, sec. 826; Kansas City v. St. Louis & Kan. City Land Co., 241 U.S. 419; White v. Fresno Natl. Bank, 98 Cal. 166, 32 Pac. 979. The final judgment in a mandamus proceeding is conclusive as between the parties and their privies or those represented as to every matter adjudicated. 2 Freeman on Judgments (5 Ed.) 1755, sec. 826; State v. Adams, 101 Mo. App. 468, 74 S.W. 497. As said in Baisley v. Baisley, 113 Mo. 550, that judgment still stands unappealed from and unreversed, and, therefore, the matters contained in that plea have passed in rem judicatam. 1 Herman on Estoppel, sec. 472; Dwight v. St. John, 25 N.Y. 203; Obear v. Gray, 73 Ga. 455; Hawk & Co. v. Evans, 76 Iowa, 593; Frauenthal's Appeal, 100 Pa. St. 290; Almy v. Daniels, 15 R.I. 312; Kaufman v. Schneider, 35 Ill. App. 256; Wooley v. Banking Co., 81 Ky. 527; 2 Black on Judgments, secs. 691, 692; 34 C.J. sec. 851, p. 553; Figge v. Rowlen, 185 Ill. 234, 57 N.E. 195; Goodell v. Starr, 127 Ind. 198, 26 N.E. 793; Essig v. Lower, 120 Ind. 239, 21 N.E. 1090; Dowell v. Lahr, 97 Ind. 146; Fowler v. Whiteman, 2 Oh. St. 270; Boswell v. Sharp, 15 Oh. St. 447; Laughlin v. Vogelsong, 5 Oh. Cir. Ct. 407, 3 Oh. Cir. Dec. 200; Sloan v. Thompson, 4 Tex. Civ. App. 419, 23 S.W. 613; Emelle v. Spinner, 20 Wyo. 507, 127 Pac. 397.
Wurdeman, Stevens & Hoester, Robert B. Denny and Jos. A. Falzone for respondent.
Relators are not parties in interest entitling them to prosecute this action, and the petition should be denied. State ex rel. Goodloe v. Wurdeman, 286 Mo. 160; Sanborn v. Carpenter, 140 Wis. 572.
In January, 1932, Elmira Townsend, Charlotte Louise Welborn and Ella F. Bolles filed in this court a petition praying for a writ against Judge MUELLER of the Circuit Court of St. Louis County to prohibit him for lack of jurisdiction from proceeding with a case on appeal from a judgment rendered November 27, 1931, by the Probate Court of St. Louis County, on an information filed by William B. MacBride, adjudging Hugh W. Thomasson insane and appointing Edward W. Terry, Public Administrator and ex-officio public guardian, to take charge of his person and estate.
Respondent, Judge MUELLER, waived service of the preliminary rule, entered his appearance and filed his return. To that return the relators filed a demurrer so that this case turns upon the pleadings, the facts stated in the petition and not denied in the return.
The petition is of great length and contains much irrelevant matter, some of it involved with facts pertinent to the issues. Respondent has filed a motion to strike out nearly all the petition, but the motion fails to set out with accuracy the parts moved to be stricken. We can very well consider the relevant matter without embarrassment from the irrelevant. The motion is therefore overruled.
In several paragraphs the petition describes numerous tracts of real estate owned by Thomasson; alleges that Grace Mahood caused Thomasson to enter a pretended marriage agreement with her; that she obtained from him certain sums of money, caused him to convey certain real estate to a third person in trust for her and to incumber other tracts with deeds of trust, one of which secured notes aggregating $125,000, with Wilfred Jones, trustee; another to secure the payment to Ella F. Bolles $1,200 a year for her life.
That May 19, 1931, Thomasson, "by direction of said Grace Mahood and G.A. Wurdeman, executed two notes for $2,500 to secure which she caused Thomasson and herself to execute a deed of trust upon three of the tracts described; that said notes are now held by said Wurdeman for legal services rendered to Ella F. Bolles in the Probate Court of St. Louis County in February and March, 1931, in her efforts to have Thomasson adjudged insane.
Then follow paragraphs alleging the information filed October 7, 1931, by Elmira Townsend in the Probate Court of the City of St. Louis, seeking to have Thomasson adjudged insane.
That the Probate Court of the City of St. Louis "investigated and heard testimony and became satisfied that there was good cause for the exercise of its jurisdiction and did make an order that the facts alleged in said information be inquired into" and thereafter caused notice to be issued in accordance with Section 450, Revised Statutes 1929; that the Sheriff of the City of St. Louis made an attempt to serve said notice but returned same non est; that such a notice was issued to the Sheriff of St. Louis County with a like return; that thereafter a notice of publication to said Thomasson was ordered and published, the petition then proceeds:
"That on or about the 27th day of September, 1931, the said probate court issued an alias notice as provided by Section 450, Revised Statutes, Missouri, 1929, to the Sheriff of the City of St. Louis to serve upon the said Thomasson, and on the 28th day of November, 1931, said Sheriff of the City of St. Louis made return showing that said writ had been duly served upon said Hugh W. Thomasson, notifying him and commanding him to be present upon the 7th day of December, 1931, in said probate court," etc.
The petition then alleges the filing by MacBride November 27, 1931, of information in the Probate Court of St. Louis County, and on that day an adjudication without jurisdiction by that court of insanity and the appeal to the Circuit Court of St. Louis by Henry S. Bolles, where the matter is now pending before respondent Judge MUELLER, who has no jurisdiction but will proceed to hear and determine the matter unless prohibited.
It then alleges the institution in the Circuit Court of the City of St. Louis of the prohibition proceeding of Thomasson v. Holtkamp, and the final determination of the matter in a judgment favorable to Holtkamp leaving him with jurisdiction of the case, as shown by Exhibit B, filed with the petition in State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W. (2d) 22.
"That on the 17th day of November, 1931, the said Ella F. Bolles, Charlotte Louise Welborn and Elmira Townsend applied to the St. Louis Court of Appeals for a writ of habeas corpus, alleging that the said Hugh W. Thomasson was unlawfully deprived of his liberty by one Grace Caroline Thomasson and Wilfred Jones, and the St. Louis Court of Appeals issued its writ of habeas corpus and compelled the production...
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