State v. Garesche

• Decision Date: 05 February 1918
• Docket Number: No. 16012.,16012.
• Citation: 198 Mo. App. 457,200 S.W. 735
• Parties: STATE ex rel. TEMPEL et al. v. GARESCHE, Circuit Court Judge.
• Court: Missouri Court of Appeals

200 S.W. 735

198 Mo. App. 457

STATE ex rel. TEMPEL et al. v. GARESCHE, Circuit Court Judge.

No. 16012.

St. Louis Court of Appeals. Missouri.

February 5, 1918.

Original proceeding by the State, on the relation of Annie M. Tempel and Gustave A. Tempel, executors of the estate of Theodore H. Tempel, to prohibit Vital W. Garesche, Judge of the Circuit Court, City of St. Louis, from entertaining jurisdiction of a cause by Thomas D. Cannon against the estate. Preliminary writ quashed.

D. J. O'Keefe and Rippey & Kingsland, all of St. Louis, for relators. T. D. Cannon and F. C. O'Malley, both of St. Louis, for respondent.

ALLEN, J.

This is an original proceeding in prohibition. The relators, executrix and executor of the estate of Theodore H. Tempel, deceased, presented to one of the judges of this court, in vacation, a petition praying for a writ of prohibition against the respondent judge to prohibit him from further entertaining jurisdiction of a certain cause pending before him, wherein Thomas D. Cannon, Esq., attorney at law, is plaintiff, and these relators are defendants. A preliminary writ was issued to which the respondent duly filed his return; and the cause has been argued and submitted to us as upon a demurrer to the return. The conceded facts are as follows:

The estate of Theodore H. Tempel, under whose will the relators are executrix and executor, is in process of administration in the probate court of the county of St. Louis. On September 14, 1917, Thomas D. Cannon instituted the action mentioned above in the circuit court of the city of St. Louis against the relators in their representative capacity to recover attorney's fees for legal services alleged to have been rendered to the said estate at the instance and request of relator Annie M. Tempel. The petition prays judgment in the said sum of $754, the alleged reasonable value of the services, and for an order directing the defendants therein to pay such sum to plaintiff out of the funds of the estate in their hands. Thereafter that proceeding came before the respondent judge, sitting in division No. 14 of said circuit court, and he was proceeding to entertain jurisdiction therein when halted by the issuance of our preliminary rule in prohibition.

The question before us, therefore is whether the proceeding pending in the circuit court of the city of St. Louis, mentioned above, is one within the jurisdiction of that court. It is argued in behalf of the relators herein that the probate court, wherein an estate is being administered, is vested with exclusive original jurisdiction to make allowances for attorney's fees for legal services rendered the estate at the instance of the executor or administrator; that such fees are a part of the expenses of administration, to be allowed as such by the probate court in settling accounts of the executor or administrator, and are not demands against the estate within the meaning of section 197, Rev. Stat. 1909; and that consequently the circuit court has not concurrent jurisdiction with the probate court to establish a claim of this character as a demand against the estate. The questions thus raised have frequently been before our courts.

In Nichols v. Reyburn, 55 Mo. App. 1, this court upon the authority of Gamble v. Gibson, 59 Mo. 585, State ex rel. Ziegenhein v. Tittmann, 103 Mo. 553, 565, 15 S. W. 941, Powell v. Powell, 23 Mo. App. 368, and other decisions cited, held that the claim of an attorney for legal services rendered at the instance of an administrator, and beneficial to the estate, was a proper subject of a demand directly against the estate, and that the circuit court had original jurisdiction of an action to establish such demand. And the ruling in that case to the effect that a claim of this character may be made the subject of a demand against the estate has been followed by this court in the following cases, viz.: Yeakle v. Priest, 61 Mo. App. 50, 51; Matson & May v. Pearson, 121 Mo. App. 120, 97 S. W. 983; Mayhall v. Stoecker, 191 S. W. 1117. There is an early decision of our court to the contrary, viz. that in Garnett v. Carson, 11 Mo. App. 290, but it has not been followed.

In State ex rel. O'Brien v. Walsh, 67 Mo. App. 348, the Kansas City Court of Appeals, following Nichols v. Reyburn, supra, held that the probate court is clothed with jurisdiction to allow an attorney's claim for legal services directly in his favor, and to order its payment out of the assets of the estate. However, in Stephens v. Cassity, 104 Mo. App. 210, 77 S. W. 1089, that court without reference to the Walsh Case or the prior decisions of this court, supra, held to the contrary. Referring to the ruling in the Stephens Case, the court in Matson & May v. Pearson, supra, 121 Mo. App. 134, 97 S. W. 987, said:

"This case, however, is not in harmony with the prevailing adjudications on the subject. It seems to ignore the entire trend of the adjudicated law in this state with respect to matters of this sort, and directly conflicts with both Nichols v. Reyburn, decided by this court, and State ex rel. v. Walsh, 67 Mo. App. 348...