State v. Sevier, 20452.

• Decision Date: 03 April 1944
• Docket Number: No. 20452.,20452.
• Parties: STATE ex rel. MAXWELL v. SEVIER.
• Court: Missouri Court of Appeals

179 S.W.2d 492

STATE ex rel. MAXWELL v. SEVIER.

No. 20452.

Kansas City Court of Appeals. Missouri.

April 3, 1944.

Appeal from Circuit Court, Clay County; James S. Rooney, Judge.

Mandamus proceeding by the State of Missouri, on the relation of Elsa Maxwell, against Judge R. F. Sevier to compel the respondent to grant an appeal and approve an appeal bond in a proceeding to discover assets. From a judgment quashing the alternative writ issued and dismissing the petition, the relator appeals.

Affirmed.

M. A. O'Donnell, of Kansas City, for relator.

Francis G. Hale, of Liberty, for respondent.

BLAND, Judge.

This is a proceeding by mandamus, by which it is sought to compel respondent, Judge of the Probate Court of Clay County, to grant an appeal and approve an appeal bond in a proceeding to discover assets.

At the conclusion of the testimony the court quashed the alternative writ theretofore issued, and relator's petition was dismissed. Relator has appealed.

The facts show that the estate of Martha A. Maxwell, deceased, is being administered in the Probate Court of Clay County and that relator is a daughter, and one of the legatees under the will of the deceased.

On March 10, 1942, relator filed in said Probate Court her affidavit alleging that Ira Jean Martin had concealed certain assets belonging to the estate, and praying that the latter be cited to appear in said court and duly answer interrogatories. Pursuant to such affidavit and application the Probate Court issued a citation directed to the said Ira Jean Martin and, thereafter, written interrogatories were filed and answered. The issues were tried and judgment entered, finding that the said Ira Jean Martin had not concealed or withheld any assets belonging to said estate, and adjudging the costs against the relator.

Thereafter, and within the time provided by statute, the said relator, Elsa Maxwell, filed in said court, her affidavit for appeal of said cause to the Circuit Court of said county. There is no contention in this case as to the sufficiency of the form or the timely filing of the affidavit. However, the Probate Court refused to allow the appeal on the ground that the relator "is not such a proper person within the scope and meaning of the statutes made and provided in such cases to whom an appeal may be granted, and second: An appeal bond has not been furnished or tendered by said Elsa Maxwell to this Court within the time provided by law for such cases".

There was no contention in the Circuit Court, nor none here, that relator was not entitled to take an appeal, provided she complied with the statute, section 287, R.S. Mo. 1939, Mo.R.S.A., requiring the giving of an appeal bond.

The bond was set at $150. Relator testified that she tendered a bond in that amount, which was executed by herself as principal, and a surety company, as surety, and, also, tendered to respondent $150 in cash; but that respondent told her not to file the bond, or deposit the cash, until he had determined whether he would allow the appeal; that without any notice to her he made the order which we have quoted. She testified that the bond which she tendered had been prepared by her attorney. The attorney testified that he prepared the bond for her use and, on cross-examination, produced it, and it was introduced in evidence by respondent. While the bond appears to be in proper form, it is signed by relator, alone.

Respondent testified that the only instrument tendered, or filed with him, by relator, in connection with the appeal, was the affidavit of appeal and that no cash was tendered; that "she never tendered me any amount of money"; that the conversation he had with her was to the effect that relator thought that the amount fixed for the bond was excessive, became incensed and stated that she would talk with her attorneys and with the Probate...