State v. McGee

• Decision Date: 14 November 1938
• Docket Number: No. 5731.,5731.
• Citation: 121 S.W.2d 765
• Parties: STATE ex rel. McGEE, Probate Judge, et al. v. OWEN, Circuit Judge.
• Court: Missouri Court of Appeals

121 S.W.2d 765

STATE ex rel. McGEE, Probate Judge, et al. v. OWEN, Circuit Judge.

No. 5731.

Springfield Court of Appeals. Missouri.

November 14, 1938.

"Not to be published in State Reports."

Original action in prohibition by the State of Missouri, on the relation of Adolph McGee, Judge of the Probate Court of Jasper County, Mo., and others, against Wilbur J. Owen, Judge of the Circuit Court of Jasper County, Mo., Division No. 1, to prohibit such judge of the circuit court from taking any further cognizance of a suit filed by the Citizens National Bank of Fort Scott, Kan., against Adolph McGee, Judge of the Probate Court of Jasper County, and others.

Preliminary writ of prohibition made permanent.

Claude B. Kenney and R. H. Davis, both of Joplin, for relators.

A. E. Spencer, Jr., and Emerson Foulke, both of Joplin, for respondent.

ALLEN, Presiding Judge.

This is an original action in prohibition brought by the relators against Wilbur J. Owen, judge of the circuit court of Jasper County, Missouri, respondent.

It will be necessary to state certain facts transpiring before the application for the writ of prohibition was filed in this court and leading up to the action of the respondent, against whom the writ of prohibition is directed.

Fred and Arizona Barker died on the 16th day of January, 1934, in the state of Florida. George Barker and Frank Dixon, relators herein, were on the 22nd day of January, 1934 appointed joint administrators of the estate of Fred Barker, deceased, and Arizona Barker, deceased, by the probate court of Jasper County. These appointments were made upon the written application in each of the estates by George Barker and Frank Dixon. After the appointment was made by the probate court the Citizens National Bank of Ft. Scott, Kansas, instituted a suit in the circuit court of Jasper County, in the nature of an injunction against Adolph McGee, probate judge of Jasper County, George Barker and Frank Dixon, administrators of the estate of Fred Barker, deceased, and George Barker and Frank Dixon, administrators of the estate of Arizona Barker, deceased; and George Barker, Frank Dixon and Claude Kenney.

The petition filed by the Bank sets forth that it is an organized banking corporation, under the laws of the United States, and that the defendant, Adolph McGee, is judge of the probate court of Jasper County, and that as probate judge, on January 22, 1935 he attempted to appoint George Barker and Frank Dixon as administrators of the estate of Fred Barker, deceased; and on the 22nd day of April, 1935 attempted to appoint George Barker and Frank Dixon as administrators of the estate of Arizona Barker, deceased; and that they have been pretending to act as such administrators from and after said time; and that the plaintiff is a creditor of the estate of Fred Barker, deceased. The petition then alleges that one of the defendants, S. L. Wolfenberger, signed a purported administrator's bond in the estate of Fred Barker and Arizona Barker and that George Barker and Frank Dixon pretended to qualify as administrators in each of said estates; that Fred Barker died on January 16, 1934 in Marion County, Florida and that he was the owner of certain money and personal property in the amount of $24,000. The petition then sets forth the order appointing the administrators and alleges that said order was obtained by fraud and perjury committed by George Barker and Frank Dixon; that each made oath and gave affidavit that Fred Barker was at the time of his death a resident of Jasper County, which fact the petition alleges was false in that Fred Barker had not been a resident of Jasper County for a period of fifteen years prior to his death; and, that they made the same affidavit as to Arizona Barker. That under the void letters of administration, which George Barker and Frank Dixon obtained by fraud, they went to the state of Florida and obtained possession of the estate of Fred Barker, deceased, in the sum of $24,000, and that thereafter they induced the probate court to make certain orders allowing to Claude Kenney as attorney's fees and for expenses the sum of $1,583.08 in the estate of Fred Barker, deceased; and further allowing Frank Dixon the sum of $962.28, which allowances, it is claimed, are void because the court had no jurisdiction over the estate of Fred Barker, deceased. The petition further alleged that the assets of the estate will be dissipated before it is possible to have a hearing on the answer and that the personal property of the estates is being dissipated by Frank Dixon and George Barker; and unless restrained the defendants will dispose of all the assets of the estate and plaintiff Bank and such other creditors of the estate as may exist, will be wrongfully deprived of their just rights. The prayer of the petition is as follows:

"Wherefore, plaintiff prays the court to immediately appoint a receiver and to make a proper order directing the defendants, George Barker and Frank Dixon and Claude Kenney, to immediately deliver to such receiver any of the assets of the estate of Fred Barker or Arizona Barker, which may have come into their hands; and that the court further issue a temporary order, restraining the defendant, Adolph McGee, from making any further orders and judgments in either of the estates of Fred Barker, deceased, or the estate of Arizona Barker, deceased, until the further order of this court.

"Plaintiff further prays the court to permanently enjoin the said Probate Court of Jasper County, or the judge thereof, from making any further orders or decrees in either of the estates of Fred Barker, deceased, or the estate of Arizona Barker, deceased, or from making any further jurisdiction in either of the said estates, and the plaintiff prays the court to declare the judgment of the said Probate Court, granting letters of administration in the estate of Fred Barker, and granting letters of administration in...