State v. Muench

• Decision Date: 21 June 1910
• Citation: 130 S.W. 282,230 Mo. 236
• Parties: STATE ex rel. PONATH v. MUENCH, Judge, et al.
• Court: Missouri Supreme Court

130 S.W. 282

230 Mo. 236

STATE ex rel. PONATH v. MUENCH, Judge, et al.

Supreme Court of Missouri.

June 21, 1910.

Rehearing Denied July 20, 1910.

1. TRUSTS (§ 162) — RESIGNATION OF TRUSTEE — APPOINTMENT OF SUCCESSOR — FINAL JUDGMENT.

A trustee filed his petition asking to be relieved of the trust and praying that a new trustee be named, and upon the petition and answer of the interested parties the court decreed that the trustee be relieved from the trust, that a trust company named be appointed as his successor, that an accounting be required by the former trustee to his successor, and that costs adjudged be paid by the estate. Held, that this judgment was a final disposition of the matters brought to issue by the petition and answer.

2. ESTOPPEL (§ 68) — JUDICIAL PROCEEDINGS.

A trustee filed a petition asking to be relieved from the trust, and upon the filing of the petition every party interested, including relator, entered their appearance and joined in the prayer of the trustee. The prayer was granted, and a trust company was appointed as his successor. Subsequently the trust company filed a petition to be relieved of the trust, and the case was docketed as an application under the former proceedings. Relator and other beneficiaries were not served with process in the later proceeding, but appeared through attorneys and asked for the appointment of relator as a successor to the trust company. Relator received the appointment, qualified, and acted as trustee. Held, that docketing the case under the wrong title would not deprive the court of jurisdiction, and that relator was estopped from questioning the decree in the proceedings, even though counsel appeared for her in such proceedings without original authority.

3. ATTORNEY AND CLIENT (§ 70) — AUTHORITY OF ATTORNEY — APPEARANCE.

An attorney has no right without special authority to waive the service of original process in a case; but where a regular attorney has appeared in the case, and thereby entered the appearance of a party, it will be presumed that he acted with authority until such time as his authority is expressly denied.

4. JUDGMENT (§ 492) — COLLATERAL ATTACK — AUTHORITY OF ATTORNEY.

In a collateral attack on a circuit court judgment, by prohibition proceedings, the authority of an attorney who appeared for a party not served by process cannot be questioned.

5. APPEARANCE (§ 19) — JURISDICTION.

Where the subject-matter of a trust was within the jurisdiction of the court, a trustee who applies to the court for release as trustee and for an adjudication of her accounting brings herself within the jurisdiction of the court.

Valliant, J., dissenting.

In Banc. Prohibition by the state, at the relation of Caroline E. Ponath, against Hugo Muench, Judge of the Circuit Court of the City of St. Louis, and others. Writ refused.

Thos. J. Rowe, for relator. Block & Sullivan, B. R. Brewer, and H. A. & C. R. Hamilton, for respondents.

GRAVES, J.

This is an original action in prohibition. Relator was formerly Caroline E. Bircher. The original petition was against Hon. Hugo Muench, judge, and the St. Louis Trust Company, as respondents; but by order of this court other respondents were permitted to come in and defend. In the first place, preliminary order to show cause was granted by one of the judges of this court, and thereafter the order as to the volunteer respondents was made. To this order to show cause all of the respondents made return, whereupon relators moved for judgment on the pleadings and that the preliminary order in prohibition be made permanent. The facts are largely of record and undisputed. These facts, when stated, obviate an analysis of the petition and answers.

Caroline E. Ponath, formerly Caroline E. Bircher, was one of the beneficiaries of a will made by one Charles A. Bircher. By the terms of such will Fred F. Espenschied and George H. Steinberg were conveyed certain property to be held in trust for the said Caroline E. Bircher (now Ponath) and others. To the February term of the circuit court of the city of St. Louis Fred F. Espenschied filed his petition asking to be relieved of such trust and praying that a new trustee be named. From his petition it appears that George H. Steinberg had theretofore been permitted to resign, and he had been made the sole trustee. Upon the filing of Espenschied's petition, each and every party interested, including Caroline E. Bircher (now Ponath), entered their appearance and joined in the prayer of Espenschied to be relieved from the trust. Upon the petition of Espenschied and the answer of the interested parties, the court entered a decree in substance as follows: (1) That Espenchied was relieved from the trust obligations created by the will; (2) the Lincoln Trust Company was designated as his successor; (3) an accounting was required by Espenschied to his successor; (4) costs were adjudged to be paid by the estate. This judgment was entered on February 25, 1902. This seems to have ended the matter until October 20, 1902, when we find a record entry showing a report from the Lincoln Trust Company and petition to resign. Just following is a decree and judgment which is vital in the present proceeding. On October 22, 1902, the circuit court entered the following decree:

"Now at this day come all of the defendants by their attorney, Henry Boemler, Esq., and the Lincoln Trust Company, heretofore on the 25th day of February, 1902, appointed successor to the plaintiff, Frederick F. Espenschied, in the trust created under the last will and testament of Charles A. Bircher, and said Lincoln Trust Company presents to the court its report of its administration of said trust estate since the date of its appointment, showing an expenditure by it of $127.38 more than the income received by it from the assets of said trust, and that it has incurred in the administration of said trust estate the sum of $386.60 for court costs and legal services, and requesting that the sum of $200 be allowed it for its services, as trustee herein, and said Lincoln Trust Company also presents to the court its petition for leave to resign said trust, and the court, having heard and duly considered the same, and defendants by their said attorney consenting thereto, doth order, adjudge, and decree that said Lincoln Trust Company be and is hereby relieved of and from the trust in it vested and imposed under the last will and testament of Charles A. Bircher, deceased, and the decree of this court entered February 25, 1902, in this cause, and that said report be and is hereby in all respects approved, and that said Lincoln Trust Company for its services as trustee herein be and is hereby allowed the sum of $200, and that it have credit against said trust estate of said sum of $127.38, advanced by it, and $386.60, and that for all of said sums, aggregating $713.98, it have, and there is hereby declared in its favor, a lien against the assets of said trust estate in the hands of its successor; that it turn over to said successor the possession of the real estate described in its said report, and stand discharged. And the defendants, beneficiaries of said trust, by their said attorney, also present their petition to the court, praying the appointment of the defendant, Caroline Bircher, as the successor of said Lincoln Trust Company in the trust created under the will of said Charles A. Bircher, deceased, and the decree of this court entered March 2, 1889, mentioned in the petition herein, and the court, having duly considered the same, doth order, adjudge, and decree that said Caroline Bircher be and is hereby appointed the successor of said Lincoln Trust Company in said trust, and that the title, estate, and trust in and to the property described in the petition which was vested in and imposed upon said Lincoln Trust Company under the terms of said will and the decree of this court be and the same is hereby vested in and imposed upon said Caroline Bircher, and that said Caroline Bircher as such trustee be and is hereby authorized and empowered to do and perform all things which might be done and performed by said Lincoln Trust Company or said Frederick F. Espenschied, under the terms of said will and said decrees of this court subject, however, to the rights of said Lincoln Trust Company to be reimbursed for its services, expenses, and outlays herein, as hereinbefore provided. And the court doth further order that, before entering upon the performance of the duties of said trust, said Caroline Bircher give bond in the sum of $5,000, with sureties satisfactory to the beneficiaries of said trust to be approved by the court, and that she or her successor herein report to this court annually on the first Monday of October the condition of said trust estate and give an account of her or his administration of the same. It is further ordered and adjudged that the costs of this proceeding be paid out of the said trust estate. Bond of Caroline Bircher, trustee, in sum of $5,000, with the St. Louis Union Trust Company as surety, approved by the court and filed."

It should be borne in mind that this decree was entered in the old case of Espenchied v. Caroline E. Bircher et al., of which defendants Caroline E. Bircher was one. Under this decree Caroline E. Bircher (now Ponath) qualified and for four years acted as trustee. The case was numbered in the circuit court throughout as No. 23,449. At the June term, 1906, on June 15, Daniel Dillon and B. R. Brewer withdrew as counsel for Caroline E. Ponath (formerly Bircher), and other beneficiaries filed their petition for the removal of the said Caroline E. Bircher (now Ponath) as trustee, and the court made an order to show cause. June 19, 1906, the parties appeared in court, and the hearing of the order to show cause was continued to June 21, 1906. The next order is on July 2, 1906. At this date the complainants withdrew their petition for removal, and Caroline E. Ponath resigned...