State v. Lamb

• Decision Date: 30 June 1913
• Citation: 160 S.W. 55,174 Mo. App. 360
• Parties: STATE ex rel. WATTENBARGER v. LAMB, Circuit Judge.
• Court: Missouri Court of Appeals

160 S.W. 55

174 Mo. App. 360

STATE ex rel. WATTENBARGER v. LAMB, Circuit Judge.

Kansas City Court of Appeals. Missouri.

June 30, 1913.

Rehearing Denied November 3, 1913.

1. APPEAL AND ERROR (§ 1176) — DIRECTING ENTRY OF JUDGMENT.

On appeal from a judgment of the probate court denying plaintiff's ward a legacy, the circuit court should render any judgment which the probate court should have granted, and an appellate court may direct the rendition of such a judgment by the circuit court, where an appeal has been taken to that tribunal.

2. JUDGMENT (§ 619)—DEFENSES—PRESENTATION OF DEFENSES.

In a suit against an executor to compel him to pay a legacy, he must present all of his defenses at once or they are waived.

3. EXECUTORS AND ADMINISTRATORS (§ 314) —ACTIONS—PLEADING.

In a suit to compel an executor to pay a legacy, an answer setting up that plaintiff's ward was not entitled to a legacy from her grandfather's estate which was left to her father, who died before the grandfather, because of the father's indebtedness to the grandfather, is in the nature of a plea in confession and avoidance, and admits the right to the legacy except for the defense.

4. APPEAL AND ERROR (§ 1207)—MANDATE—CONSTRUCTION.

In a suit to compel an executor to pay a legacy left to the father of plaintiff's ward, the executor set up as a defense the father's indebtedness to the estate; the pleadings admitting the amount of the legacy. Held, that a mandate by the Court of Appeals to the circuit court, commanding it to find for the plaintiff the sum shown to be due, is an express direction to find for the amount of the legacy, and that court could not remand the case to the probate court to allow the executor a new trial in which to set up new defenses.

5. APPEAL AND ERROR (§ 1198)—DETERMINATION—MANDATE—EFFECT.

When the lower court receives the mandate of an appellate tribunal, it must follow the directions contained therein, and is without authority to go outside.

6. MANDAMUS (§ 4) — SCOPE OF REMEDY — RIGHT TO MANDAMUS.

In a suit to compel an executor to pay a legacy, the Court of Appeals directed the circuit court to find in favor of the plaintiff for the amount due, the pleadings having admitted the amount of the legacy. Instead of doing so, the circuit court remanded the case to the probate court, from whose order the executor appealed. Held, that the failure of plaintiff to appeal from the action of the circuit court in remanding the case to the probate court, and his action in moving to dismiss executor's appeal, will not bar him from the remedy of mandamus to compel the circuit court to follow the mandate; for, while mandamus may not be substituted for an appeal, a party cannot be required to bring successive appeals to require the trial court to follow the mandate of an appellate court.

7. MANDAMUS (§ 181)—PETITION—WRIT.

That the petition included in an alternative writ of mandamus prayed that the circuit court be required to enter an order compelling an executor to pay a legacy in accordance with the mandate of the Court of Appeals, and for such further sums as the relator might be entitled to, will not preclude the issuance of a peremptory writ, on the ground that the petition prayed for more than the plaintiff was entitled to, where subsequent allegations showed that plaintiff was only entitled to payment of the legacy.

8. EXECUTORS AND ADMINISTRATORS (§ 313) —DISTRIBUTION — DEFAULT OF EXECUTOR— INTEREST ON LEGACY.

Where an executor wrongfully refuses to pay a legacy, interest will be allowed thereon from the date of filing petition in the probate court requesting such payment.

Original proceeding for mandamus by the State, on relation of Jacob B. Wattenbarger guardian, against Fred Lamb, Judge of the Circuit Court of Sullivan County. Peremptory writ issued.

Calfee & Painter, of Milan, and E. M. Harber, of Trenton, for relator. A. W. Mullins, of Linneus, and D. M. Wilson, of Milan, for respondent.

ELLISON, J.

This is an original proceeding in this court whereby relator seeks, through our writ of mandamus, to compel respondent, as judge of the circuit court of Sullivan county, Mo., to obey the mandate of this court issued in the cause of Wattenbarger v. Payne, reported in 162 Mo. App. 434, 145 S. W. 148. An alternative writ was issued and return thereto has been made. Relator, concluding that the return presented no defense to the alternative writ, has filed a motion for judgment that the writ be made peremptory. The immediate question before us arose on relator's motion or suggestion in the circuit court to carry out the mandate of this court. The return discloses clearly the theory which has governed the action of the trial court throughout the proceedings. The order of this court, when the judgment was rendered, was that the judgment of the circuit court would be reversed and the cause remanded to that court, with directions to it "to find for the plaintiff the sum shown to be due" him as such guardian. The returns shows a refusal to obey this direction, and the reasons entertained in justification of the refusal. The reasons may be said to be two in number—one that this court did not determine that any sum was due the guardian—that it merely determined that she was entitled to the legacy left to her father, discharged of his indebtedness to the grandfather. The other was that it could not determine or pass upon the amount due relator, since the estate was yet in course of administration, and the probate court was the only court which could carry out the mandate of this court, and therefore it (the circuit court) ordered the case transferred back to the probate court, with directions to the latter court "to ascertain the condition of the estate, and find exactly what is the amount due this child and then enter judgment for it." The return shows that that court refused to follow the directions of the circuit court, and that it proceeded to make an order in the premises, from which the executor appealed to the circuit court. On this appeal evidence on part of the relator was heard, consisting of the original petition of the guardian in the probate court, asking that the executor be required to pay him for his ward $5,000, being the amount he had paid the other legatees, and the executor's answer to such petition, as well as the several settlements of the executor, together with the mandate of this court. The evidence on the part of the executor was the will and his oral testimony. The return further showed that the court found the evidence of the executor was true, and that it was not affected by the pleadings in the cause and the several settlements made by the executor. The court considered that the petition and answer upon which the cause had been heard originally by the probate court and then, successively, on appeal by the circuit court and this court, were not a concession that $5,000 was due relator's ward if she was not cut out by the indebtedness of her father to her grandfather. The court further found, as stated by the executor in his testimony, that he had not cash funds of the estate to exceed $150, and that the large balances shown in favor of the estate in his settlements were not cash, but were "notes and property." The return then sets up a colloquy between the court and counsel immediately following the overruling of the motion, in which the court stated that in its opinion the probate court should ascertain what was due relator's ward and compel a settlement of the estate. Then counsel for relator said: "There can be no question, under directions of the Court of Appeals, but what this ward should have been paid $5,000." The court answered: "The opinion may have been written on that assumption, but that was not the question presented, that was not the question being argued, and that question was not, as I find from the record, directed to the attention of the court. If that was the basis for the directions to this court, why then it was without proper foundation, because the record does not show any ascertainment as to the amount. If this case had been tried in the probate court, and that court had found the amount due, and that appeal was brought here," etc. The circuit court then again refused to follow the directions contained in the mandate of this court, and again ordered the case transferred to the probate court, whereupon relator, in behalf of his ward, instituted this proceeding.

It will be observed from the foregoing that the respondent, as judge of the circuit court, did not consider that the right of relator's ward to the sum of $5,000 had been adjudicated by this court; and, as it had not, he, as such circuit court, could not do so, since that, in his opinion, was the province of the probate court. We have therefore undertaken to inquire if there is a sound basis for that view. And first we will remark the total misunderstanding of the directions of this court. We did not cast upon the trial court the duty to try and to determine what sum was due relator's ward. That had clearly appeared from the start, and as the trial court had found against her, we reversed the judgment and directed that it find for her in the sum which had been confessed to be due her.

When relator's appeal from the probate court to the circuit court was heard by the latter, it could and should have rendered any judgment on that appeal which the probate court could and should have rendered; and, failing in that, this court, in the exercise of appellate authority, could direct it to do so.

What the judgment of the probate court should have been, under the law that the child took the legacy of her father without being charged with her father's debt to the testator,...