The State ex rel. Jacobs v. Trimble

• Decision Date: 30 July 1925
• Docket Number: 25311
• Citation: 274 S.W. 1075,310 Mo. 150
• Parties: THE STATE ex rel. FLOYD E. JACOBS, Administrator of Estate of EKATERINE STRUMPOPULOS, v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

274 S.W. 1075

310 Mo. 150

THE STATE ex rel. FLOYD E. JACOBS, Administrator of Estate of EKATERINE STRUMPOPULOS, v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25311

Supreme Court of Missouri

July 30, 1925

Writ quashed.

L A. Laughlin for relator.

Wm G. Butts and Leonard Ulmann for respondents.

Seddon C. Lindsay, C., concurs.

OPINION

SEDDON

Certiorari to the Kansas City Court of Appeals. Petition for the extraordinary writ was filed in this court on February 20, 1924. The petition is signed by Ekaterine Strumpopulos, petitioner, by her attorney and is duly verified by the attorney. The writ of certiorari was issued by this court on March 22, 1924, commanding the respondent Judges of the Kansas City Court of Appeals to certify to this court on April 21, 1924, a full, true and complete transcript of the record and proceedings in the cause of Constantenos D. Strumpopulos, Appellant, v. Ekaterine Strumpopulos, Respondent, No. 14780 in said Court of Appeals, in order that this court may adjudicate upon the regularity of the said proceedings, and make such other and further orders in said cause as right and justice may require. Pursuant to the mandate of our writ, the respondents filed herein on March 31, 1924, a full, true and complete transcript of the record and proceedings in said cause. The transcript thus filed includes the opinion of the Kansas City Court of Appeals, which constitutes the record in this court. The opinion of the Kansas City Court of Appeals discloses that Constantenos D. Strumpopulos, plaintiff, on November 2, 1917, filed a petition for divorce against Ekaterine Strumpopulos, defendant, in the Circuit Court of Jackson County, at Kansas City, and obtained service on defendant by publication. On April 30, 1918, defendant not appearing, a decree of divorce was rendered by said circuit court in favor of plaintiff. On March 28, 1922, defendant, Ekaterine Strumpopulos, filed in said circuit court her motion to modify the decree of divorce, alleging that she was married to plaintiff on October 14, 1905, in Greece; that a daughter was born to them in the early part of the year 1907; that in September, 1907, plaintiff left defendant and his infant daughter and came to America; that since that time plaintiff has contributed nothing to the support of his wife and daughter. The circuit court sustained the defendant's motion to modify the decree, and awarded defendant $ 40 per month for the support and maintenance of the daughter, and $ 100 for attorney's fees. Plaintiff appealed from the action of said circuit court, and the Kansas City Court of Appeals reversed the judgment nisi. The respondent (defendant nisi), Ekaterine Strumpopulos, in due time filed her motion for rehearing in the Kansas City Court of Appeals, which motion was overruled and denied by that court on February 11, 1924, resulting in her application for our writ of certiorari on February 20, 1924.

On July 30, 1924, respondents to our writ and Constantenos D. Strumpopulos filed in this court the suggestion of death of said Ekaterine Strumpopulos in Tripolis, Greece, on August 7, 1923, with certificate of death attached, and a motion to dismiss petitioner's application and to vacate our order granting the writ of certiorari. On August 9, 1924, petitioner's attorney filed herein the suggestion of petitioner's death on August 7, 1923, and informing this court that Floyd E. Jacobs, Public Administrator of Jackson County, had been appointed administrator of her estate by the probate court of said county. On the same day, August 9, 1924, Floyd E. Jacobs, administrator of the estate of Ekaterine Strumpopulos, deceased, filed herein his petition for revival asking that this certiorari proceeding be revived in his name as such administrator. On September 10, 1924, this court entered an order sustaining the motion of Floyd E. Jacobs and ordering that "the said Floyd E. Jacobs be substituted as party relator, unless the respondents, on or before the fourth day of the next term of this court, show good cause to the contrary." This court, by said order, also commanded that summons be issued directed to respondents to be and appear herein on or before the fourth day of the next term of this court and show cause, if any they have, why the order of substitution should not be made final, and this proceeding was continued to the April term, 1925, of this court. Pursuant to said order, summons issued from this court on September 18, 1924, requiring respondents to appear herein on or before the fourth day of the October term, 1924, to show cause why this proceeding should not be revived in the name of Floyd E. Jacobs, administrator of the estate of Ekaterine Strumpopulos, deceased. Service of said summons was duly acknowledged on September 19, 1924, by respondents and in due time, on October 15, 1924, respondents filed herein their answer to the petition of revivor, asking that the petition and our writ of certiorari herein be dismissed for the reasons that the original petitioner, or relator, was deceased on February 20, 1924, when the petition or application for our writ was filed, and, said action does not survive. The answer of respondents has been taken and considered by us with the main proceeding. On April 17, 1925, Constantenos D. Strumpopulos filed herein the suggestion of the death of Kyriakoula Strumpopulos, the infant daughter, in Tripoli, Greece, on December 25, 1924, duly verified as true by affidavit. Counsel for relator has neither denied nor questioned the truth of this fact. So much for the record here and the facts as shown by that record.

It will be seen from the foregoing that an unusual and anomalous situation confronts us. Unbeknown to court or counsel, Ekaterine Strumpopulos had died on August 7, 1923, while the cause in which she was the party respondent was pending in the Kansas City Court of Appeals and before that cause had been docketed or set down for argument in said court, which was done at the October term, 1923, thereof. No suggestion of her death was made at any time in the Court of Appeals and, ignorant of her death, that court on January 21, 1924, proceeded to render judgment against her, reversing by its opinion and judgment, the order of the Circuit Court of Jackson County. Motion for rehearing was filed in the name and behalf of the deceased party, duly overruled by the Court of Appeals, and this court petitioned in her name and behalf to issue our writ of certiorari. It was not until July 30, 1924, some five months after we had acted upon her petition and issued our writ and the cause pending in the Court of Appeals had resulted in judgment against deceased, that the death of relator was called to our attention. Respondents therefore contend that our writ of certiorari must be quashed, because, at the time the writ was sued out of this court, there was no living relator or petitioner. In ruling this contention, it becomes necessary for us to determine whether the certiorari proceeding instituted in this court by a deceased relator or petitioner, is a new, distinct and separate action or proceeding, or whether it is merely a continuation, for the purpose of review, of the suit or action originally instituted in the circuit court while Ekaterine Strumpopulos was living and thence carried by appeal to the Kansas City Court of Appeals. That the certiorari proceeding instituted in this court is a new, separate and distinct action or proceeding, there is no doubt in our minds.

In 11 Corpus Juris, 90, it is said: "A proceeding by certiorari is not a mere application in an action or other remedy, but a remedy itself. In the common-law states it is classified as an action. In the code states, where proceedings are divided into actions and special proceedings, it is held a special proceeding in Iowa and New York. In Wisconsin, however, it is held that, while, strictly speaking, a certiorari proceeding is not an action, it is an action rather than a special proceeding, on the theory that the writ is...