The State ex rel. Hampe v. Ittner

• Decision Date: 05 June 1924
• Docket Number: 24942
• Citation: 263 S.W. 158,304 Mo. 135
• Parties: THE STATE ex rel. OTTO HAMPE, Administrator Pendente Lite of Estate of FREDERICK MOLL, and MAUD HARDEN, Curatrix of Estate of FRED MOLL, A Minor, v. ANTHONY F. ITTNER, MOSES HARTMAN and FRANK LANDWEHR, Judges of Circuit Court of City of St. Louis
• Court: Missouri Supreme Court

263 S.W. 158

304 Mo. 135

THE STATE ex rel. OTTO HAMPE, Administrator Pendente Lite of Estate of FREDERICK MOLL, and MAUD HARDEN, Curatrix of Estate of FRED MOLL, A Minor, v. ANTHONY F. ITTNER, MOSES HARTMAN and FRANK LANDWEHR, Judges of Circuit Court of City of St. Louis

No. 24942

Supreme Court of Missouri

June 5, 1924

Preliminary rule discharged.

Randolph Laughlin, Abram M. Frumberg, Henry W. Blodgett, Alexander R Russell, Walter N. Fisher, Taylor L. Young and A. M Brinkman for relators.

(1) There must be property in and before the court to justify the appointment of a receiver. Miller v. Perkins, 154 Mo. 629; Pond v. Railroad, 130 Mass. 194; Matter of B. G. E. Co., 143 N.Y. 261. (2) The jurisdiction of circuit courts to appoint receivers is limited by law, and when such limitation is exceeded, the action of the court is void and subject to collateral attack. State ex rel. v Ross, 122 Mo. 461. (3) Sole original jurisdiction is conferred upon the probate court in all matters touching the management of real estate which is a part of an estate, so long as that estate is in process of administration. Secs. 22, 23, 34, Art. 6, Mo. Constitution; Secs. 13, 129, 130, 2436, 2542, R. S. 1919. (4) Prohibition is the proper remedy to keep courts within the compass of their legitimate judicial action as defined by law. State ex rel. v. Woolfolk, 269 Mo. 397; State ex rel. v. Ross, 122 Mo. 461; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Hirzell, 137 Mo. 447; Miller v. Perkins, 154 Mo. 629.

Joseph Block for respondents.

(1) Otto Hampe, administrator pendente lite, is not a proper party relator herein. (a) He was not legally appointed and did not qualify according to law. R. S. 1919, secs. 296, 17 to 19; Leahy v. Mercantile Trust Co., 247 S.W. 395; In re Landgraf's Estate, 183 Mo.App. 251. (b) Even though he had been legally appointed and had duly qualified he would have no interest in the subject-matter of these proceedings, or the proceedings in which the receiver was appointed, i. e., the real estate belonging to Frederick Moll at the time of his death. R. S. 1919, secs. 13, 129; Grant v. Hathaway, 215 Mo. 141; McQuitty v. Wilhite, 218 Mo. 586; Union Trust Co. v. Soderer, 171 Mo. 675; Langston v. Canterbury, 173 Mo. 122; In re Dildine's Estate, 239 S.W. 112. (2) Neither is Maud Harden, curatrix of the estate of Fred Moll, a minor, a proper party relatrix herein. Reed v. Wilson, 13 Mo. 28; Judson v. Walker, 155 Mo. 166; Webb v. Hayden, 166 Mo. 39; Jones v. Railroad Co., 178 Mo. 528; Gibson v. Shull, 251 Mo. 480. (3) The preliminary rule in prohibition was improvidently issued and the permanent writ should be refused. (a) Circuit courts are given the power by statute to appoint receivers, and the exercise of this power rests within the sound discretion of the court. R. S. 1919, sec. 1449; Stark v. Grimes, 88 Mo.App. 409; Cantwell v. Lead Co., 199 Mo. 1; Abramsky v. Abramsky, 261 Mo. 117; State ex rel. v. Stobie, 194 Mo. 14. (b) During the pendency of a will contest the circuit court has complete jurisdiction as to the care and preservation of the real estate. Union Trust Co. v. Soderer, 171 Mo. 675; Ex parte Devoy, 236 S.W. 1070. (c) Mistaken exercise of jurisdiction will not justify the writ. School District v. Sims, 193 Mo.App. 485; State ex rel. v. McElhinney, 199 Mo. 67; State ex rel. v. McQuillan, 262 Mo. 256. (d) The remedy by appeal from the order appointing a receiver, as given by statute, is adequate. The writ of prohibition will not be used to take the place of an appeal or writ of error. R. S. 1919, sec. 1469; State ex rel. v. Bank, 197 Mo. 574; State ex rel. v. Jones, 274 Mo. 395; State ex rel. v. Hanson, 217 S.W. 17; State ex rel. v. Wurdeman, 232 S.W. 1002. (e) The writ of prohibition will not issue in presence of complete jurisdiction in court whose proceedings it is sought to prohibit. State ex rel. v. Ellison, 208 S.W. 439. (f) The general rule governing the issuance of writs of prohibition, is: The writ is designed to correct the unlawful assumption of jurisdiction. When the court has jurisdiction, error in the exercise thereof, defects in pleading, etc., cannot be reached by the writ. State ex rel. v. McQuillan, 256 Mo. 704; State ex rel. v. Gates, 190 Mo. 540; State ex rel. v. McQuillan, 262 Mo. 269; State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. v. Riley, 203 Mo. 175; State ex rel. v. Fort, 210 Mo. 512; State ex rel. v. Dearing, 180 Mo. 53.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On September 18, 1923, the above-named relators filed in the Supreme Court of Missouri their verified petition for a writ of prohibition against the above-named respondents as judges of the Circuit Court of the City of St. Louis, Missouri. Said petition, without the jurat, reads as follows:

"To the Honorable Judges of the Supreme Court of Missouri:

"Your relators respectfully show the court as follows:

"(1) That Frederick Moll, late of the city of St. Louis, died on or about September 3, 1922, and left as his sole and only heir at law and next of kin his grandson, Fred Moll, a minor that your relatrix, Maud Harden, is the mother of said minor and is the duly appointed, qualified and acting guardian of his person and curatrix of his estate; that said minor is now six years of age.

"(2) That on or about September 6, 1922, one Philip Pollack offered for probate, and caused to be probated, an instrument purporting to be the last will of said Frederick Moll, deceased, pursuant to the terms whereof the said Philip Pollack was appointed executor without bond of said Frederick Moll estate.

"(3) That by the terms of said purported will the said Philip Pollack, and Siegfried Pollack, his son, and Ethel Siebert, his daughter, were made the principal beneficiaries of said Frederick Moll estate, which was and is of the value of about one hundred and fifty thousand dollars.

"(4) That thereafter, and in due course, your relatrix, Maud Harden, as curatrix of said Fred Moll, said minor, filed in the Circuit Court of the City of St. Louis a petition or suit, still pending, contesting the validity of said purported will, on the ground, among others, that the said Philip Pollack, who was the attorney of said Frederick Moll, had poisoned the mind of said Frederick Moll against his grandson by false and slanderous statements to the effect that said Fred Moll was not his grandson, but was the illegitimate child of your relatrix, Maud Harden, and that by said means, and other false and fraudulent misrepresentations and statements, the said Philip Pollack had substituted his own will for the will of his client, and had made himself and his relatives the beneficiaries thereof.

"(5) That upon the filing of said will contest suit letters of administration pendente lite were granted by the Probate Court of the City of St. Louis to your relator, Otto Hampe, who thereupon, and by virtue of the provisions of Section 13, Revised Statutes 1919, became duty-bound to take charge of the property and to administer the same according to law under the direction of the court and to account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act. By virtue of said appointment your relator, Otto Hampe, is entitled to the possession of the property of said Frederick Moll, deceased, during the time of such will contest.

"(6) On or about July 27, 1923, the said Philip Pollack, in the name of his daughter, Ethel Siebert, filed in the Circuit Court of the City of St. Louis, a document purporting to be a petition for an injunction. Said petition was filed after said Pollack had been given notice that an administrator pendente lite was about to be appointed by the Probate Court of the City of St. Louis, and for the purpose of defeating and thwarting said appointment of the probate court. Said petition is entitled Ethel Siebert, plaintiff, v. Maud Harden, May Hickey et al., defendants, and was and is numbered 68072. Neither your relatrix, Maud Harden, as curatrix of said Fred Moll, a minor, nor said Fred Moll, a minor, was made a party defendant to said petition. A certified copy of the record in said cause, marked 'Exhibit A' is herewith filed and made a part hereof. Said cause was duly assigned to Division No. 14 of the Circuit Court of the City of St. Louis, where the same remains pending.

"(7) The defendants, Honorable Anthony F. Ittner, hereinafter called Judge Ittner; Honorable Moses Hartman, hereinafter called Judge Hartman, and Honorable Frank Landwehr, hereinafter called Judge Landwehr, were and are duly qualified and acting judges of the Circuit Court of the City of St. Louis, and as such are made respondents hereto. On said July 27, 1923, Judge Ittner was acting as presiding judge in said Division 14 of the Circuit Court, City of St. Louis, and over said cause of Siebert v. Harden. Judge Hartman is now acting as presiding judge in said court and cause, and Judge Landwehr will be presiding in said division from and after October 1, 1923, and during the time that this suit will be heard. Acting as such judges, said respondents have exceeded their jurisdiction and usurped and undertaken to exercise illegal, arbitrary oppressive power in said cause of Siebert v. Harden et al., to the resulting injury, prejudice and oppression of your relators, as follows, to-wit:

"(8) On July 27, 1923, Judge Ittner, without notice to the parties to said lawsuit, or to any of them, and without notice to the real parties in interest, or to these relators, or to either of them, appointed Philip Pollack receiver in accordance with the prayer of said petition, and by the order appointing him clothed him with the indicia of right to withhold from your relator, Otto Hampe, as administrator ...