State v. Withrow

• Decision Date: 22 December 1891
• Parties: STATE ex rel. JOHNSON et al. v. WITHROW, Judge et al.
• Court: Missouri Supreme Court

18 S.W. 41

108 Mo. 1

STATE ex rel. JOHNSON et al. v. WITHROW, Judge et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

PROHIBITION — ACTION ON ADMINISTRATOR'S BOND — CONCURRENT JURISDICTION — COURTS OF ST. LOUIS.

The circuit court and the probate court of the city of St. Louis have concurrent jurisdiction of an action for breach of an administrator's bond; therefore, where proceedings against an administrator, involving his liability on such bond, are pending in the probate court, a writ of prohibition will not lie to prevent the circuit court from taking jurisdiction of an action on the bond against the sureties therein. If the circuit court err in overruling a plea setting up the proceedings in the probate court in bar of such action, the remedy of the sureties is by appeal, and not by writ of prohibition to the circuit court.

Application for writ of prohibition on the relation of James B. Johnson and another against James E. Withrow, judge of division No. 3 of the circuit court of the city of St. Louis, and another. Writ denied.

James Carr and James A. Carr, for relators. John M. Glover and E. S. Robert, for respondents.

GANTT, P. J.

This is a proceeding to obtain a writ of prohibition from this court to prohibit and restrain Hon. James E. Withrow, judge of division No. 3 of the circuit court of St. Louis, and Arba N. Crane, Esq., a referee appointed by said court, from hearing and finding on the issues, and from assuming or exercising jurisdiction in a certain cause brought and pending in said division of said circuit court wherein the state of Missouri, at the relation of John F. Shepley, administrator de bonis non of John R. Shepley, deceased, in charge of the copartnership estate of Glover & Shepley, is plaintiff, and James B. Johnson and Thomas F. Hayden are defendants, on an administrator's bond, executed by John M. Glover, as administrator de bonis non of the partnership of Glover & Shepley, a firm composed of Samuel T. Glover and John R. Shepley, both deceased, as principal, and said defendants as sureties, in the penal sum of $86,000, and conditioned for the faithful performance of his duties as such administrator. These facts appear from the pleadings and evidence taken: The partnership of Glover & Shepley was composed of Samuel T. Glover and John R. Shepley. Mr. Shepley survived Mr. Glover, and letters were issued to him on the copartnership estate. He died, and, instead of letters issuing to his executor, they were granted by the probate court to John M. Glover on December 1, 1884. He executed a bond in the penal sum of $86,000, with Joseph A. Glover and the relators, J. B. Johnson and T. F. Hayden, as sureties, conditioned for the faithful discharge of his duties. On April 24, 1889, he was removed by the probate court. John F. Shepley, as administrator of his father, John R. Shepley, was then ordered to take charge of the partnership estate. On October 3, 1889, Glover filed a final account of his administration in the probate court. This was done after requests by Shepley, but no motion was filed by Shepley in the probate court, nor was Glover cited to appear. Shepley filed exceptions to the account. On January 21, 1890, Glover filed an amended account, to which Shepley also filed exceptions. Shepley thereafter tried to get the probate court to pass on the exceptions, but Judge WOERNER declined to do so, on the ground that Glover was not before him, and he had no jurisdiction over the account unless the statutory method was followed, or Glover would appear and submit himself to the jurisdiction of the court. During the year 1889, and ever since, Glover has been living without this state. At the June term, 1890, of the circuit court of the city of St. Louis, Shepley brought suit on the bond of Glover, alleging as breaches (1) that Glover had failed to account as required by law; (2) that he had failed to settle with his successor; (3) that he had failed to pay over and deliver to his successor the $86,000 in his hands. The defendants in said action, being the relators herein, filed an answer, in which they set up (1) a plea to the jurisdiction of the circuit court on said bond; (2) a plea that another cause of action was pending in the probate court between the same parties, and involving the same issues. A trial was had on the two pleas, and they were both adjudged bad. The issues in that case involved an examination of all of Glover's accounts. Consequently the court, on motion of the plaintiff therein, referred the question to the respondent Crane on July 22, 1891. The referee duly qualified, and, after due notice, set the cause for September 15, 1891. Both parties appeared before the referee, and at the defendant's request the hearing was continued to September 18, 1891. Both parties again appeared, and plaintiff offered some testimony, but the trial was discontinued in obedience to the rule of this court. After the suit on Glover's bond had been filed, he appeared in the probate court, and asked to have the exceptions to his accounts heard. The matter was tried July 8, 1891, and a judgment was rendered against him for $22,173.72 on October 31, 1891. The case in the probate court was brought under article 2, c. 1, Rev. St. 1889. The sureties (relators herein) were not notified or cited to come in, and did not appear or take any part in the trial in the probate court. Glover is not a defendant in the suit on his bond, the prosecution of which is...