State v. McQuillin

• Decision Date: 10 December 1912
• Citation: 152 S.W. 347,246 Mo. 417
• Parties: STATE ex rel. BERNERO v. McQUILLIN, Judge.
• Court: Missouri Supreme Court

152 S.W. 347

246 Mo. 417

STATE ex rel. BERNERO v. McQUILLIN, Judge.

Supreme Court of Missouri.

December 10, 1912.

1. PROHIBITION (§ 10)—CONTROLLING INFERIOR COURT—AVAILABILITY OF REMEDY.

The test whether prohibition shall issue is: Has the inferior court jurisdiction to do what it is about to do, and, where it is proceeding without jurisdiction or in excess of jurisdiction, prohibition lies, and where a court of general jurisdiction is about to do, in a particular case, a particular thing which it has no judicial power to do, the writ lies.

2. PROHIBITION (§ 3)—CONTROLLING INFERIOR COURT—AVAILABILITY OF REMEDY.

Mere inadequacy of or delay in other remedies, or hardships incident to the use of ordinary remedies existing, may be considered in determining whether the court in its discretion shall issue prohibition to an inferior court, but do not furnish sole ground for the writ.

3. STATUTES (§ 181)—CONSTRUCTION—LEGISLATIVE INTENT.

A statute couched in comprehensive terms must receive a construction in aid of the broad intendments of the Legislature.

4. STATUTES (§ 222) — CONSTRUCTION — EXTRINSIC FACTS.

The court in construing a statute must consider the common law governing before the adoption of the statute, the defect therein, and the remedy sought by the Legislature, and give the statute such a construction as will suppress the mischief and advance the remedy.

5. QUIETING TITLE (§ 45)—VOLUNTARY DISMISSAL—RIGHT.

One of the objects of Rev. St. 1909, § 2535, providing that, on the trial of a suit to quiet title, the court, if asked for in the pleadings of either party, may finally determine all interests of the parties in the property, and may award relief to the several parties, is to avoid a multiplicity of suits, and a plaintiff suing to quiet title may not dismiss, where defendant has asked for the quieting of his title, but the court must proceed to determine the issues raised by defendant.

6. EVIDENCE (§ 11) — JUDICIAL NOTICE— FACTS OF CURRENT HISTORY.

The Supreme Court judicially knows facts of current history.

7. CONTINUANCE (§ 10)—APPEAL AND ERROR (§ 966)— APPLICATION — DISCRETION OF TRIAL COURT—REVIEW.

An application to continue a suit to quiet title until a suit to contest a will has been tried is an application for a continuance, and is addressed to the sound discretion of the trial court, reviewable on appeal.

8. PROHIBITION (§ 11)—CONTROLLING RULINGS ON APPLICATION FOR CONTINUANCE.

Prohibition does not lie to prohibit an inferior court from trying a suit on the theory

that it should have granted an application to continue it pending determination of another suit.

9. PROHIBITION (§ 28)—CORRECTION OF ERRORS—OTHER ADEQUATE REMEDY.

The court, on prohibition to prohibit an inferior court from trying a suit to quiet title until a suit to contest a will has been determined, will not consider whether the court will commit error by adjudging title in defendants pending the contest, or consider what construction ought to be given to the will under the contention that under the will plaintiff in the suit to quiet title and relator in the prohibition proceedings has no title, and will not consider whether the party instituting the will contest is interested in the estate and entitled to maintain the suit, since the decision of the inferior court on such questions may be corrected on appeal.

10. WILLS (§ 229)—CONTEST—PARTIES IN INTEREST.

Under Rev. St. 1909, § 555, providing that any person interested in the probate of a will may contest its validity, only a person interested in the probate of a will may sue to contest it.

In Banc. Prohibition by the State, on the relation of Louis Bernero, an infant, by Lorraine T. Bernero, curatrix of his estate, against Eugene McQuillin, Judge of the Circuit Court of St. Louis, Division No. 9. Writ denied.

Thomas D. Cannon, Moses N. Sale, David Goldsmith, Ernest P. McCarty, and John A. Burke, all of St. Louis, for relator. Stewart, Bryan & Williams and McShane & Goodwin, all of St. Louis, for respondent.

LAMM, J.

To our preliminary rule citing Judge McQuillin to show cause, he made return admitting some, and raising an issue of fact on certain other, allegations of the petition. Relator replied to that return raising an issue of fact on certain allegations of that return. Thereupon by stipulation, to avoid a commissioner to take proof, there is filed here an exemplification of the record entries, evidence, motions, and pleas in a certain suit brought by relator to quiet title, and a petition in a certain other suit brought by relator to contest a will, to which exemplification we are referred in order to determine the controverted issues. The suit to quiet title will be hereinafter called "A," that to contest the will will be called "B," for brevity and convenience of reference.

Briefly, to get our bearings at the outset, we are asked by relator to prohibit the trial of a cross-action in A, until such time as B has been determined; both A and B being pending at the same time in Judge McQuillin's division of the circuit court of the city of St. Louis.

The issues here are of a kind seeking a summary of the pleadings and situation nisi in A, and the vital facts constituting the history of that suit at the time our preliminary rule was passed and served.

(Note: There are two Louis Berneros mentioned in the record. We will call one "Louis the elder," the other [the relator, an infant], "Louis the younger." The wife of Louis the elder was named Theresa. In this opinion she will be called by her given name alone. The land in dispute in A has a long description. It is a valuable lot in the city of St. Louis and for convenience of reference will be called "X." There is another Bernero mentioned in the record named Manuello. He is the nephew of the elder and father of the younger Louis and will be called by his surname alone.)

A synopsis of the history of A is this:

The last of August, 1911, Louis the younger (through his mother as curatrix) instituted A. In January, 1912, an amended petition was filed, the object and general nature of which was to determine and adjudge title to X. The amended petition, as was the original, is founded on section 2535, R. S. 1909, formerly section 650, amended in 1909 (Laws of 1909, pp. 343, 344). Thereby it was alleged, in substance, that Louis the younger is the only child and heir of Manuello; that Manuello died in 1910; that in the year 1880 Manuello was adopted by Louis the elder and Theresa as their son, was "educated, proclaimed, published and maintained" as their son, and was, in fact, their adopted son; that Louis the elder died in 1904 testate, owning X; that his will, duly probated in 1904, by its fifth clause disposed of X by giving and devising it to his wife, Theresa, and adopted son, Manuello, in the terms following (quoting): "* * * To have and enjoy for and during the term of her natural life, and at the time of her death the same to pass to our adopted son, Manuello Bernero, if he shall survive her, to have and enjoy during his natural life, and at his decease to pass to and vest in fee in his children, if any he have, or their descendants, but in default or failure of such direct heirs, children or grandchildren him surviving, then at the time of his death the title to said realty in fee shall pass to and vest in my right heirs; if, however, my said wife shall survive said Manuello, then she, said Theresa Bernero, is hereby empowered to devise said realty as she shall see fit, or if she shall fail to make such testamentary disposition of same, then said realty, upon her death, shall vest in my right heirs, if she shall survive said Manuello; I authorize and empower my said wife during her lifetime, and if said Manuello shall survive her and enter upon the enjoyment of said realty, then said Manuello, during his lifetime, to lease said realty thus bequeathed to them for life as aforesaid, successively, on such terms as they severally deem proper, each exercising such right during her or his life tenancy, for leasehold periods not exceeding twenty-five years (25) each."

Suit A is against the St. Louis Union Trust Company and divers codefendants named Longinotti, and the amended petition goes on to allege that Theresa died in July, 1911; that, by reason of the will of the elder Louis, the younger Louis became owner in fee simple of, and claims a fee-simple title to, X; that defendants claim some title, estate, or interest to and in X, which claim is adverse and prejudicial to that of plaintiff. The prayer is as follows: "Wherefore plaintiff prays the court to try, ascertain, and determine the estates, title, and interest of the plaintiff and defendants, of, in, and to the said land and real property hereinbefore described, and by its decree to adjudge, determine, settle, quiet, and define the respective rights, titles, interests, and estates of plaintiff and defendants to said land and real property; and plaintiff further prays that, if the court finds that he is the sole owner of the land and real property hereinbefore described, then an order and decree be entered of record forever barring and precluding the defendants and each of them as well as all persons claiming by, through, or under said defendants, from hereafter setting up any title or claim to said real property and for all other proper orders and relief in the premises."

To that amended petition, defendant trust company answered making certain admissions, but denying that Manuello was the adopted son of Louis the elder and Theresa, and denying that Louis the younger had any title or interest in X under the will of the elder Louis. In a subsequent paragraph of its answer, it undertakes to put its own construction on the fifth clause of the elder Louis' will, averring, among other things, that by that clause Theresa had testamentary power over X, in case she survived Manuello, that she had survived him and exercised such testamentary...