State ex rel. Townsend v. Holtcamp

• Decision Date: 13 July 1932
• Docket Number: 32351
• Parties: State ex rel. Elmira Townsend and Ella F. Bolles, Relators, v. Charles W. Holtcamp, Judge of the Probate Court of the City of St. Louis
• Court: Missouri Supreme Court

55 S.W.2d 428

330 Mo. 1101

State ex rel. Elmira Townsend and Ella F. Bolles, Relators, v. Charles W. Holtcamp, Judge of the Probate Court of the City of St. Louis

No. 32351

Supreme Court of Missouri

July 13, 1932

Alternative writ made peremptory.

Taylor R. Young and Abbott, Fauntleroy, Cullen & Edwards for relators.

There is no appeal from the probate court in this State from an order overruling plea to jurisdiction, or any other order not amounting to a final judgment. Secs. 285, 284, 292, R. S 1929; Case v. Smith, 215 Mo.App. 621; Tuber Co v. Evans, 304 Mo. 674; Huffman v. Rhodes, 72 Neb. 57, 100 N.W. 159; Keller v. Harrison, 129 N.W. 57; Gentz v. Galles, 14 N. M. 343, 93 P. 702; Stout v. Stout, 131 N.E. 245; Moran v. Stewart, 246 Mo. 462, 151 S.W. 439; Russell v. Railroad Co., 154 Mo. 428; 3 C. J. sec. 256, p. 432; 3 C. J. sec. 256, p. 437; Koeln v. Gould, 168 S.W. 1140; Lowe v. Frede, 258 Mo. 208; State ex rel. v. McElhinney, 241 Mo. 592; Strickler v. Travy, 66 Mo. 465; Jay v. O'Donnell, 178 Ind. 282, 98 N.E. 349.

Charles H. Daues for respondent.

(1) Mandamus will not lie. (a) The existence of a remedy by appeal precludes the remedy by mandamus. State ex rel. v. Thurman, 232 Mo. 164; State ex rel. v. Mosman, 112 Mo.App. 549; State ex rel. v. McKee, 150 Mo. 243; State ex rel. v. Field, 107 Mo. 450; 18 R. C. L. 297, sec. 230. The fact that the remedy by appeal may involve an inconvenience or delay does not change the rule. Ex parte Perry, 102 U.S. 183. (b) If any remedy existed, it would be by prohibition, not mandamus. State ex rel. Smith v. Williams, 310 Mo. 273; State ex rel. v. Thurman, 232 Mo. 164; State ex rel. v. McKee, 150 Mo. 243. "It does not lie to correct the errors of inferior tribunals by annulling what they have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them." (c) The probate court has jurisdiction to grant an appeal, even erroneously, and mandamus will not lie to prevent it from doing so erroneously, because such writ cannot be made to perform the functions of an appeal. Leahy v. Mercantile Trust Co., 296 Mo. 599; State ex rel. Smith v. Williams, 310 Mo. 272; State ex rel. v. Moehlenkamp, 133 Mo. 138; State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Burckhartt, 87 Mo. 533. (d) The probate court has full power to dispose of the affidavit for appeal, and if it disposes of it contrary to law, its error must be corrected by appeal, and not prevented by mandamus. Leahy v. Mercantile Trust Co., 296 Mo. 597. (e) In a case where the guardian of an insane person had been removed by the probate court, and where it yet remained to settle and approve his accounts and grant his discharge, the Supreme Court compelled the county court (exercising probate jurisdiction) to grant an appeal. Hall v. County Court, 27 Mo. 329, approved in In re McMenamy, 307 Mo. 119, and State ex rel. Smith v. Williams, 310 Mo. 272. (2) The right of appeal exists (a) Appeals are favored by our law, and statutes having to do with the right to an appeal should be liberally construed. State ex rel. v. Shelton, 238 Mo. 297; State ex rel. Goodloe v. Wurdeman, 286 Mo. 159; State v. Mueller, 39 S.W.2d 1079; Nolan v. Johns, 108 Mo. 435; In re Doe Run Lead Co., 223 S.W. 606. (b) The right of appeal is conferred by Secs. 285, 1938, and by the fifteenth clause of Sec. 284, R. S. 1929. (c) Section 285 is mandatory. Appeals "shall be allowed . . . in all cases." This is qualified, not by the requirement that there has been "a final judgment," but merely by the requirement that the judge or jury "has made a finding." The finding is not limited to a finding of sanity or insanity, but is co-extensive with the sum total of the litigation "in the matter of an investigation of the mental condition of anyone alleged to be insane." As relators construe this statute, it adds nothing whatever to Section 284, which already covers the ground. Such a construction in effect strikes out Section 285 by reducing it to so much mere meaningless surplusage. This may not be. It is a cardinal rule of statutory construction that effect must be given, if possible, to every word, clause and sentence, and that no part must be permitted to perish by constructions. Hannibal Trust Co. v. Elzea, 286 S.W. 377; Strottman v. Railway Co., 211 Mo. 227; Bank v. Ripley, 161 Mo. 131; State ex rel. v. Horter, 188 Mo. 529. (d) Independent of the above, the right of appeal is clearly conferred by Sec. 1938, R. S. 1929: "The circuit courts . . . shall have power and jurisdiction as follows . . .; Fourth, appellate jurisdiction from the judgment and orders of . . . probate courts . . . in all cases not expressly prohibited by law, and shall possess a superintending control over them." "This statute is exceedingly broad. By its terms, an appeal lies unless expressly prohibited, and we find no such prohibition. The sections cited are, in our opinion, abundantly sufficient to confer the right of appeal in the case at bar. ()" State ex rel. Goodloe v. Wurdeman, 286 Mo. 160; Leahy v. Mercantile Trust Co., 296 Mo. 601; In re McMenamy, 307 Mo. 122; State ex rel. Smith v. Williams, 310 Mo. 273. "Note the use of the word 'order' in this statute as, well as the word 'judgment.' ()" See, also: State v. Mueller, 39 S.W.2d 1079; Baker v. Smith's Estate, 18 S.W.2d 151.

OPINION

Atwood, C. J.

Relator, Elmira Townsend, is informant in a proceeding now pending before respondent, Charles W. Holtcamp, Judge of the Probate Court of the City of St. Louis, to inquire into the sanity of Hugh W. Thomasson. Prior to any hearing therein counsel for Thomasson, appearing specially, filed a motion to quash the return of service upon him and a plea to the jurisdiction of respondent to hear and determine the information. After adverse rulings thereon counsel for Mr. Thomasson filed affidavits for appeals from said rulings to the Circuit Court of the City of St. Louis, and upon intimation of respondent that he would grant such appeals relators herein sought our writ of mandamus requiring respondent to hear and determine without further delay the information now pending before him.

Alternative writ of mandamus was ordered and respondent waived issuance and service thereof and filed demurrer and answer to relators' petition, alleging that the petition states no cause of action and that respondent "is the Probate Judge of the City of St. Louis, and as such has no interest in the controversy except to fairly adjudicate and adjudge all matters in such cause which may properly come before him; that pursuant to the judgment and mandate of this Honorable Court he has proceeded with this cause as in his judgment he thought was right and proper and in accordance with the latest decisions of the highest court; that he has ruled on the motions referred to in the pleadings according to his best understanding of the law with reference thereto; that thereupon the two affidavits for appeal from said rulings were filed; that the respondent then and now entertains grave doubt as to whether such appeal should be granted, but resolving such doubt on the side of allowing the appeal, he has indicated that such appeal will be granted unless this court directs otherwise; that your respondent feels that he may with propriety petition the court to speedily determine the issue so that the respondent may at the outset have the direction of this Honorable Court with reference to said matter."

Counsel for respondent says that relators have no such interest in the proceeding now pending before him as entitles them to prosecute this suit, citing decisions in this and other jurisdictions on the right of appeal. We have recently held otherwise in the proceeding in prohibition by Elmira Townsend, Charlotte Louise Welborn and Ella F. Bolles v. Fred E. Mueller, Judge of the Circuit Court of St. Louis County, 51 S.W.2d 8, not yet officially reported. We held in that case that decisions dealing with the right of appeal from probate orders and judgments did not present a controlling analogy; that Elmira Townsend being a proper informant and liable for the costs in case of discharge of the person informed against, (Sec. 455, R. S. 1929), she was a necessary and interested party and, therefore, entitled to prosecute the extraordinary remedy of prohibition. The same course of reasoning impels us to hold that she may also invoke the extraordinary remedy of mandamus.

Counsel for respondent also says that relators have an adequate remedy by appeal and for this reason mandamus will not lie. The writ of mandamus cannot be made to perform or usurp the functions of an appeal or writ of error (State ex rel. v. McKee, 150 Mo. 233, 243, 51 S.W. 421), and the mere fact that a litigant or respondent judge himself invites us to decide the issue is in no sense compelling. However, where a court "having obtained jurisdiction, refuses to proceed in the exercise thereof to a determination on the merits, and there is no other adequate remedy by appeal or writ of error, it may be compelled to do so by mandamus," by another court having such superintending control. [Ferris on Extraordinary Remedies, sec. 300, p. 404; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; State ex rel. v. Homer, 249 Mo. 58, 155 S.W. 405.] The right of a party to a judgment on the merits is the fundamental aim of the law. [Floyd v. Sixth Jud. Dist. Ct., 36 Nev. 349, 135 P. 922, 4 A. L. R. 646, 649, and decisions there cited.]

In the instant case respondent had a right, and it was his duty, to judicially determine the question of his jurisdiction of the subject-matter and parties. Having found that he had jurisdiction of both it then became his duty to proceed to hear and determine the inquisition on its merits, unless the...