State v. McQuillin

• Citation: 246 Mo. 586,151 S.W. 444
• Parties: STATE ex rel. NOLTE, Sheriff, et al. v. McQUILLIN, Judge.
• Decision Date: 26 November 1912
• Court: United States State Supreme Court of Missouri

151 S.W. 444

246 Mo. 586

STATE ex rel. NOLTE, Sheriff, et al. v. McQUILLIN, Judge.

Supreme Court of Missouri.

November 26, 1912.

Rehearing Denied December 10, 1912.

1. APPEAL AND ERROR (§ 170) — APPEAL FROM PROBATE COURT — CONSTITUTIONAL QUESTION.

A constitutional question cannot be raised on an appeal from the probate court, where no such issue was presented at the trial.

2. EXCEPTIONS, BILL OF (§ 53) — REFUSAL TO SIGN — DEFENSE — WRIT OF PROHIBITION.

Where a writ of prohibition had been granted by the St. Louis Court of Appeals restraining respondent, a circuit judge, from signing and filing a bill of exceptions on an appeal from an order dismissing an appeal from probate, such writ, whether rightful or wrongful, was a valid reason for respondent's refusal to sign and file such bill of exceptions.

3. EXCEPTIONS, BILL OF (§ 53) — SIGNING — ENFORCEMENT.

While the Supreme Court will grant mandamus to compel circuit courts to sign and file bills of exception, a writ will not be granted where the signing and filing of a bill under the circumstances would be a vain and useless act.

4. INSANE PERSONS (§ 23) — INQUISITION — NEW TRIAL — JURISDICTION.

Rev. St. 1909, § 482, permits the probate court, for just cause appearing during the term at which an inquisition is had, to require the facts to be inquired into by a new jury. Held that, where a person found insane promptly moved to set aside the verdict during the term, the expiration of the term did not oust the probate court of jurisdiction; the statute being directory only.

5. EVIDENCE (§ 82) — PRESUMPTIONS — JUDICIAL ACTS — PROBATE COURTS.

The acts of the probate courts of the state are presumed to be regular until the contrary is shown.

6. INSANE PERSONS (§ 27) — INQUISITION — — JUDGMENT — APPEAL.

Since probate court decrees adjudging a person of unsound mind are in fieri and may be opened and set aside at any subsequent term of the court in case the person be restored to sanity, as provided by Rev. St. 1909, § 519, no appeal lies therefrom.

7. CONSTITUTIONAL LAW (§ 316) — DUE PROCESS OF LAW — DISMISSAL OF APPEAL FROM PROBATE.

Dismissal of an appeal from an order of the probate court setting aside a verdict finding a person of unsound mind and granting a new trial before another jury did not deprive the petitioners of due process of law, but merely remanded the proceeding to the probate court for trial in the only tribunal designated by the Legislature to determine the issues.

In Banc. Mandamus by the State on the relation of Louis Nolte, Sheriff of the City of St. Louis, and Edward M. Taylor, to compel Eugene McQuillin, Judge of the Circuit Court of St. Louis City to settle, sign, and file a bill of exceptions. Alternative writ quashed, and peremptory writ denied.

Mandamus to compel the respondent, as judge of the circuit court of St. Louis city, to settle, sign, and file a bill of exceptions in a cause appealed to this court. The proceedings which led up to the issue of our alternative writ are as follows: On March 17, 1911, and during the March term, 1911, of the probate court of St. Louis city, the relator Louis Nolte in his official capacity as sheriff of St. Louis city, filed an information in said court under the provisions of sections 474 and 477, R. S. 1909, alleging that one Clara E. Taylor, a resident of said city, was a person of unsound mind and incapable of managing her affairs. Upon the filing of said information a jury was duly impaneled by said court, which jury, after hearing the evidence, returned a verdict sustaining the allegations of said information. Only 10 of the jurors concurred in the verdict. Judgment was rendered on said verdict declaring the said Clara E. Taylor to be a person of unsound mind and incapable of managing her affairs. During the said March term of said probate court, Clara E. Taylor filed therein her motion to set aside the verdict of the jury, whereupon said probate court made an order reciting the filing of said motion, and further reciting that the court, "not being fully advised of and concerning same, doth take time to consider thereof." No further action was taken by the probate court in said proceeding until July 10, 1911, on which day it entered an order setting aside the verdict of the jury so returned on March 17, 1911, and granting said Clara E. Taylor a new trial. On July 13, 1911, relator Nolte filed in said probate court an affidavit and bond for appeal from the order of said court granting a new trial. The appeal was accordingly granted to the circuit court of St. Louis city and assigned to the division of said circuit court over which respondent presides. On October 2, 1911, said Clara E. Taylor filed with respondent a motion to dismiss the aforesaid appeal from the probate court on the ground that "no appeal lies in the circumstances of this case; the

order granting the same being improvidently and erroneously made," and "because the order setting aside the finding and verdict of the jury was not a final determination of the matter in the probate court, and no appeal would lie from the same." On November 17, 1911, respondent, as judge of said circuit court, sustained said motion and dismissed the appeal; but, for some reason not recited in relator's petition, respondent on December 1, 1911, set aside and vacated its order dismissing relator's appeal, and reinstated the motion to dismiss on his docket. On January 5, 1911, the motion to dismiss was again sustained, and relators' appeal dismissed. On January 18, 1911, relator Nolte filed in the circuit court what he designates as a "petition" and affidavit for appeal to this court from the order and judgment dismissing his appeal from the probate court. The allegations of this "petition" for appeal will be noted in our opinion. On February 2, 1912, relator Edward M. Taylor also filed with respondent a "petition" for appeal, in which he describes himself as the husband of the aforesaid Clara E. Taylor, and for that and other reasons claimed the right to prosecute an appeal from the respondent's order dismissing the appeal granted by the probate court.

The conclusions we have reached render it unnecessary to decide whether Edward M. Taylor possessed any right to interplead or otherwise inject himself into this litigation. Pursuant to relator Nolte's petition and affidavit for appeal from the circuit court, the respondent on February 3, 1912, granted him an appeal to this court, and also granted him 10 days in which to prepare, have signed, and file his bill of exceptions. Respondent in his return recites that relator Nolte prepared and presented to him a bill of exceptions within the time granted and allowed for that purpose, but that, before said bill of exceptions was settled, signed, and filed, respondent was served with a preliminary writ of prohibition issued by the honorable St. Louis Court of Appeals, which writ prohibits said respondent from taking any further action in the matter of said information against Clara E. Taylor until the further order of said Court of Appeals. Respondent in his return further states that he is willing to comply with our...