State ex rel. Zeppenfeld v. Calhoun

• Decision Date: 29 September 1925
• Docket Number: No. 19294.,19294.
• Citation: 279 S.W. 188
• Parties: STATE ex rel. ZEPPENFELD v. CALHOUN, Judge.
• Court: Missouri Court of Appeals

279 S.W. 188

STATE ex rel. ZEPPENFELD v. CALHOUN, Judge.

No. 19294.

St. Louis Court of Appeals. Missouri.

September 29, 1925.

Rehearing Denied January 26, 1926.

Original prohibition proceeding by the State, at the relation of Robert M. Zeppenfeld, to prohibit Hon. John W. Calhoun, Judge of the Circuit Court of the City of St. Louis, from proceeding with the trial of an appeal from the probate court. Preliminary rule in prohibition discharged.

Robert M. Zeppenfeld, of St. Louis, for relator.

Taylor, Mayer & Shifrin, of St. Louis, for respondent.

DAUES, P. J.

This is an original proceeding by prohibition, in which it is sought to prohibit the respondent, judge of one of the divisions of the circuit court of the city of St. Louis, from proceeding with the trial of an appeal from the probate court of said city taken from an allowance of an attorney fee for services alleged to have been rendered to the estate of Leo Caplan, then in the course of administration in said probate court.

Our preliminary rule having issued, return was duly made by respondent, which is in the nature of a demurrer, and, with the certified record of the proceedings below, we have the following facts and issues present:

During the December term, 1923, of the probate court of the city of St. Louis, Mo., and on the 8th day of January, 1924, an allowance was made relator as attorney fees in the matter of the above-named estate. On the 14th day of the same month, and during the same term of the probate court, one of the residuary legatees filed a motion in the probate court, termed "exceptions to allowance of attorney fees and motion for rehearing on said petition for allowance." In this motion the court was prayed to set aside the allowance thus made and to grant a rehearing of the matter, for the reason, among others, that the allowance was excessive and improper. No action was taken on this motion by the court during the December term, 1923. The complaining legatee, on the 26th day of January, 1924, and within 10 days after the adjournment of said court for the December term, filed her affidavit and bond for an appeal to the circuit court from said order of allowance thus made. The appeal was granted as prayed, and all papers relating to the proceedings were transmitted to the circuit court. The "motion for rehearing," however, was carried over without any action being taken thereon until the 19th day of April, 1924, when the probate court records show a continuance of the motion to the next June term, 1924, of said court. On July 12, 1924, during the June term, the court dismissed the motion and exceptions for want of prosecution. The appeal to the circuit court had advanced to the trial docket. At that stage relator moved the court to dismiss the said appeal, for the assigned reason that the circuit court had no jurisdiction, since the appeal was taken from the probate court while appellant's motion for rehearing was pending and undisposed of in said court; that the appeal was premature. The circuit court overruled the motion and ordered the trial to proceed, at which juncture our preliminary rule stayed further progress of the case.

The sole question for us to decide is whether the appeal was premature, and thus whether the circuit court is without jurisdiction to hear the cause on appeal.

We are inclined to the view of respondent that the allowance of attorney fees constitutes an expense of administration, and is not a demand under section 181, Revised Statutes 1919. The case of Crow v. Lutz, 175 Mo. App. 427, 162 S. W. 679, would so indicate. And it is quite clear that section 211 of our present statutes does not apply in the instant case, but that sections 282 and 283, Revised Statutes 1919, are applicable. See subsection 10 of section 282.

It appears, then, that the statute makes no provision for a motion for rehearing or new trial from an order of allowance for the expenses of the administration, and the probate court's order making the allowance of the fee for the estate's attorney is made subject to appeal at any time within 10 days after the term at which the order is made. Therefore the appeal may be taken during the term or at a time not beyond 10 days thereafter, and no motion for rehearing or new trial is necessary. It is respondent's position that, since the statute makes no requirement for a ...