The State ex rel. Burton v. Bagby
| Decision Date | 23 June 1921 |
| Parties | THE STATE ex rel. RUSSEL E. BURTON, Appellant, v. DAVID BAGBY, Probate Judge |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. -- Hon. Samuel Davis, Special Judge.
Affirmed.
A. H Waller and Paul P. Prosser for appellant.
(1) Relator was entitled to prove the facts averred in his petition and set forth in the alternative writ to which respondent made return. (2) Plaintiff's petition stated a cause of action, and respondent's return to the alternative writ admitted every material fact averred in said petition and alternative writ, hence the court erred in dismissing said petition. (3) It positively appears from the face of the record that the codicil to the will has not been legally rejected by the probate or circuit court. (4) The order and judgment of the probate court rejecting said codicil, made on the 15th day of July, 1902, is a nullity because the jurisdiction of the subject-matter, the will and codicil, had been divested out of said probate court, and transferred to the circuit court by virtue of the contest of said will and codicil begun five weeks prior thereto. State ex rel. v. Guinotte, 156 Mo. 519; State ex rel v. Imel, 243 Mo. 186.
John Cosgrove and R. M. Bagby for respondent.
(1) The respondent was judge of the Probate Court of Howard County and would have to have acted judicially to have made the order required of him by the alternative writ. A judicial officer cannot be compelled to render a particular judgment. He cannot be coerced to render a particular judgment or to rectify an erroneous one. State ex rel. Hyatt v Smith, 105 Mo. 6; State ex rel. Flick v. Reddish, 148 App. 715; Stowe v. Stowe, 140 Mo. 594; Stephens v. Larwill, 110 Mo.App. 159. A will cannot be probated again after the court has acted upon the application to probate. 40 Cyc. 1234. (2) Mandamus will not lie where the plaintiff has another remedy. Jamison v. Lenore, 126 Mo. 413; State ex rel. Bartly v. Filcher, 39 Mo. 388; State ex rel. v. Nerry, 105 Mo.App. 462. (3) If suspension of the jurisdiction of the probate court affords ground for mandamus, mandamus would not lie in this case for the reason that the application for the writ of mandamus did not set out the petition in the will contest case, and the contest judgment which appellant made a part of his application for the writ shows on its face that the codicil was not in the contest petition nor produced to the court in the contest. Suspension of the jurisdiction of the probate court over that instrument cannot be shown by ignoring the contest petition where the contest judgment does not mention that instrument. Benoist v. Murrin, 48 Mo. 54. There being no contest as to the codicil, the probate court acted within its jurisdiction in rejecting the codicil. Under the pleadings and evidence, appellant was not entitled to the writ of mandamus and the trial court did not err in refusing to make said writ permanent. State ex rel. v. Neville, 110 Mo. 345; State ex rel. v. Albin, 44 Mo. 346.
This is an appeal from a judgment of the Circuit Court of Howard County, dismissing a proceeding by mandamus which had been instituted in that court against the probate court of that county to compel it to probate or to reject the codicil of a will.
One Benjamin E. Nance died testate in Howard County, in May, 1902. The relator, appellant here, was named as one of the legatees in the will and as a devisee in the alleged codicil. At the time, he was an infant of tender years, but attained his majority in August, 1918.
On June 3d, 1902, the will of the testator and the codicil were presented in vacation to the judge and ex-officio clerk of the Probate Court of Howard County for probate, and the following entry of record was made in regard thereto: "I, J. T. Smith, judge and ex-officio clerk of probate within and for the county of Howard and State of Missouri, having examined the foregoing instrument of writing purporting to be the last will and testament of Benjamin E. Nance, deceased, late of Howard County, Missouri, and having heard the testimony of C. I. Smith, Harry G. Herndon, Wallace Estill, Jr., and W. J. Boggs, subscribing witnesses to said will, and the testimony of J. H. Herndon and J. F. Chancellor, subscribing witnesses to the codicil to said will, do declare said two instruments of writing to be the will of said Benjamin E. Nance, deceased, late of Howard County, Missouri."
On June 9th, 1902, a daughter of the testator brought a suit in the Circuit Court of Howard County to test the validity of the will and to have same probated or rejected. At the November term, 1902, of said court, the issues were made up and the cause submitted to the court for determination. The court found in favor of the proponents of the will and incorporated a copy of the same without the codicil in its decree, in which it was declared that said will as copied and set forth therein was the will of the testator. A copy of this decree was ordered certified to the Probate Court of Howard County.
While said suit was pending in the Circuit Court of Howard County, the following order was, on the 15th day of July, 1902, entered of record in term time, by said probate court:
"The court approves the probate of the will of said deceased on the testimony of C. I. Smith, Harry G. Herndon, Wallace Estill, Jr., and William J. Boggs, subscribing witnesses indorsed thereon, and declares said will established as the last will and testament of said Benjamin E. Nance, deceased, late of Howard County, Missouri, but rejects the codicil of said will by reason of the fact that John H. Herndon, one of the subscribing witnesses, did not...
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