State v. McQuillin

Citation152 S.W. 341,246 Mo. 674
PartiesSTATE ex rel. DAMON et al. v. McQUILLIN, Judge.
Decision Date10 December 1912
CourtUnited States State Supreme Court of Missouri

In Banc. Mandamus by the State, on the relation of Rosa E. Damon and another, against Eugene McQuillin, Judge of the Circuit Court, City of St. Louis, to compel respondent to permit the filing of an amended petition. Denied.

Petition for a mandamus against respondent, directing him to permit the filing of an amended petition in the case of Rosa E. Damon against the Columbia Trust Company and others.

In March, 1905, Louis Ewald made his last will, in which he described himself as "Louis Phillip Ewald, of the city of Louisville, in the state of Kentucky." The will gives the bulk of his very large estate to the Fidelity Trust Company of Louisville, in trust as follows: "For my three children, Phillip Louis, Helen Josephine and Sterling Donald, share and share alike." He also makes several bequests to his brothers and sisters, giving them each the sum of $15,000. The will appoints a guardian for the said three children. There were several codicils to this will, one of them substituting the Columbia Trust Company as executor. These codicils were made on the 19th day of July, 1909. The will purports to be signed in the city of Louisville. On the 17th day of January, 1910, Rosa E. Damon, one of the sisters of decedent, filed a suit in the circuit court of the city of St. Louis to contest the aforesaid will. She is the only plaintiff. In that suit she made defendants the Columbia Trust Company, of Louisville, Ky., the St. Louis Union Trust Company, of St. Louis, the brothers and sisters of decedent and their descendants, several in number, and the children mentioned in the will, together with their guardian. In her petition the plaintiff alleges that she is a sister of said Louis P. Ewald; that he was at the time of his death, and for many years prior thereto, a resident of the city of St. Louis, Mo.; and that the defendants, other than the trust companies and the aforesaid children, are the brothers and sisters of said Louis P. Ewald and the descendants of said brothers and sisters. The petition further alleges that said Louis P. Ewald never married, that his said brothers and sisters and their descendants are his only heirs, and that said children mentioned in the will claimed to be his children by adoption. The petition states further that on November 10, 1900, there was filed in the circuit court of Jefferson county, Ky., a paper which purported to be a petition of Louis P. Ewald, asking for the adoption of two of said children, and that on said date the circuit court of Jefferson county, Ky., acted on said paper, and entered an order purporting to grant the prayer of said petition, and declared said children to be adopted by said Ewald, and thereafter, on October 10, 1905, similar proceedings were had with regard to the adoption of the third child. Plaintiff alleges that said petitions for the adoption were invalid, in that when they were filed, and for a long time prior thereto, the said Louis P. Ewald was not of sound mind, and was not capable of entering into the adoption of children; that from, and prior to, the said date, November 10, 1900, until the time of his death, the said Louis P. Ewald was a resident of the city of St. Louis, and was never a resident of Louisville, in the state of Kentucky; that neither of the petitions filed in the circuit court of Jefferson county, Ky., is in form required by law, and the decree of the said circuit court of Jefferson county, Ky., is not in conformity to the law of the state of Kentucky; that all of said proceedings for adoption are void by reason of the aforementioned facts. The petition further alleges that said Louis P. Ewald died in the city of Louisville, Kentucky, on the ____ day of ____, 1909, and that on the ____ day of ____, 1909, "there was produced before the probate court of the city of St. Louis, state of Missouri, an instrument purporting and alleging to be the last will and testament of said Louis P. Ewald, which said instrument was admitted to probate on the ____ day of ____, 1909, and which said instrument was dated 23d day of March, 1906," and then sets out in detail the will of said Louis P. Ewald; further, that on the ____ day of ____, 1909, the defendant the St. Louis Union Trust Company was by the probate court of the city of St. Louis appointed administrator cum testamento annexo of the paper above mentioned and set out as the purported and alleged last will and testament of Louis P. Ewald, deceased, and is now in possession of the said estate and administering thereon. The petition then alleges that said Louis P. Ewald was not of sound mind at the time of the execution of said will, and also alleges undue influence exerted by one Ellen J. Golden. Wherefore the plaintiff prays that the alleged instruments claimed to be petitions, and claimed to have been filed by Louis P. Ewald in the circuit court of Jefferson county, Ky., asking for the adoption of said children, and all proceedings had thereon, be declared null and void, that an issue of fact be made, and that the probate of the instrument alleged to be the last will and testament of Louis P. Ewald be set aside, and for such other decrees as to the court might seem just and proper.

On this petition summons was issued and served upon the St. Louis Union Trust Company, and upon several individual defendants who resided in St. Louis, in time for the February term. Among the defendants so served was Harry F. Ewald, one of the relators herein.

This suit was filed, as stated above, on the 17th day of January, 1910, returnable to the February term. On February 7, 1910, the St. Louis Union Trust Company entered its voluntary appearance in writing, and on that date filed a demurrer to the petition upon the following grounds: (1) That said petition does not state facts sufficient to constitute a cause of action. (2) That several causes of action have been improperly united in one...

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40 cases
  • Stith v. Newberry Co., 31563.
    • United States
    • Missouri Supreme Court
    • February 8, 1935
    ...let out of the case and that no action has been taken bringing him back in, that is sufficient. [18 C.J. 1167; State ex rel. v. McQuillin, 246 Mo. 674, 695, 152 S.W. 341.] Suppose this court should do no more than examine the record and enter a judgment dismissing both appeals on the ground......
  • State ex rel. Muth v. Buzard
    • United States
    • Missouri Supreme Court
    • November 10, 1947
    ...void; a motion to vacate, therefore, lies at any time, and respondent has jurisdiction to entertain and determine it. State ex rel. v. McQuillin, 246 Mo. 674, 152 S.W. 341; Secs. 538, 540, R.S. 1939; Crabtree v. Aetna, 341 Mo. 1173, 111 S.W. (2d) 103; Russell v. Nelson, 317 Mo. 148, 295 S.W......
  • Ewart v. Dalby
    • United States
    • Missouri Supreme Court
    • March 3, 1928
    ...Unless the suit is brought by such an interested party, the petition does not state a cause of action under the statute. State ex rel. Damon v. McQuillin, 246 Mo. 674; Gruender v. Frank, 267 Mo. 713. (2) It is a settled principle of interpretation of wills that where a devisee is granted an......
  • Stith v. J.J. Newberry Co.
    • United States
    • Missouri Supreme Court
    • February 8, 1935
    ... ... by the belated attempt to withdraw such evidence from the ... jury by instruction given at the close of the case. State ... v. Martin, 229 Mo. 640; State v. Mix, 15 Mo ... 160; State v. Fredericks, 85 Mo. 150; Waldron v ... Waldron, 156 U.S. 361, 15 S.Ct ... been [336 Mo. 497] taken bringing him back in, that is ... sufficient. [18 C. J. 1167; State ex rel. v ... McQuillin, 246 Mo. 674, 695, 152 S.W. 341.] ...          Suppose ... this court should do no more than examine the record and ... enter a judgment ... ...
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