The State ex rel. Goodloe v. Wurdeman

• Decision Date: 31 December 1920
• Parties: THE STATE ex rel. BENT GOODLOE v. G. A. WURDEMAN, Judge of Circuit Court
• Court: Missouri Supreme Court

227 S.W. 64

286 Mo. 153

THE STATE ex rel. BENT GOODLOE v. G. A. WURDEMAN, Judge of Circuit Court

Supreme Court of Missouri

December 31, 1920

Alternative writ discharged.

Campbell Cummings and Robert L. Shackelford for relator.

(1) Ordinarily an appeal is not open where the action of the court is purely negative. 2 Woerner's Administration (2 Ed.), sec. 545. Mandamus is the only proper remedy where a "court refuses to proceed with a case, because the court was erroneously of opinion that it did not have jurisdiction. "A dismissal on the ground of the want of jurisdiction is not such an assumption of jurisdiction as to require its refusal by appellate proceedings." State ex rel. v Shackelford, 263 Mo. 52; State ex rel. v Homer, 249 Mo. 64; State ex rel. v. McElhinney, 246 Mo. 56; State ex rel. v. Broaddus, 239 Mo. 368; State ex rel. v. Grimm, 220 Mo. 489; State ex rel. v. Smith, 172 Mo. 459; State ex rel. v Smith, 172 Mo. 627; State ex rel. v. O'Bryan, 102 Mo. 259; State ex rel. v. Philips, 97 Mo. 347. An appeal is not a full and adequate remedy. State ex rel. v. Homer, 249 Mo. 75; State ex rel. v. O'Bryan, 102 Mo. 259; Sedwick F. Co. v. Craig, 160 Mo.App. 91; 26 Cyc. 171; 18 R. C. L. sec. 230. (2) An appeal will lie to the circuit court from the probate court's action overruling the motion to remove a guardian for neglect of duty and misconduct. Coleman v. Farrar, 112 Mo. 62, 72; Stanton v. Johnson Est., 177 Mo.App. 56; Hall v. County, 27 Mo. 330; Secs. 289, 298, 522, 3956, 4067, R. S. 1909; Brockman v. Webb, 189 Mo.App. 476; Fitzmaurice v. Turney, 256 Mo. 187; State ex rel. v. Wiethaupt, 238 Mo. 167. (3) The adult sons of an adult non compos have sufficient interest for an appeal. Boynton v. Dyer, 18 Pick. 1; Robinson v. Dayton, 190 Mass. 459; State ex rel. v. Dickman, 175 Mo.App. 548; In re Olson, 10 S.D. 648; 3 C. J. 632, sec. 493; P. 647, sec. 509; P. 649, sec. 512; R. S. 1909, secs. 289, 298, 522, 3956, 4067.

Wilson & Trueblood for respondent.

(1) The decision of respondent that the appellants did not have an interest in the estate under administration cannot be reviewed in a proceeding for mandamus, because mandamus is not intended to serve the purpose of a writ of error or appeal. 4 Am. L. Rep. 632; Eckerle v. Wood, 95 Mo.App. 378. (2) There is no provision in Art. 19, Chap. 12, R. S. 1909, allowing petitioners an appeal from an order of the probate court. Morris v. Morris, 128 Mo.App. 673. (3) Under Sec. 289, R. S. 1909, the right of appeal from the probate court in any case is restricted to "any heir, devisee, legatee, creditor or other person having an interest in the estate under administration." Expectant or presumptive heirs have no such interest. In re Carpenter, 140 Wis. 572, 25 L. R. A. (N. S.) 155. (4) The Massachusetts cases cited by petitioners are not applicable, because under the Massachusetts statutes presumptive heirs of a non compos are entitled to notice, and the the ward is treated as civilly dead. Harrington v. Harrington, 13 Gray (Mass.) 513; Leyland v. Leyland, 186 Mass. 420; Lawless v. Reagan, 128 Mass. 592. These Massachusetts cases reconcile the Massachusetts decisions with the general rule. For the general rule see annotation in foot note, In re Carpenter 25 L. R. A. (N. S.) 155.

OPINION

In Banc.

Mandamus.

WILLIAMSON J.

This is a proceeding by mandamus issuing out of this court against the respondent as Judge of Division Number Two of the Circuit Court of St. Louis County, whereby it is sought to require him in his official capacity to take jurisdiction of a certain matter heretofore pending in his court and to hear and determine it upon its merits.

The issuance of an alternative writ was waived and respondent entered his appearance and filed a demurrer to the petition. The cause is submitted upon the petition and demurrer.

The petition alleges that relators are sons and heirs at law of Emmeline Bent Goodloe; that she had been duly adjudged to be of unsound mind, and that Ward Goodloe, another son, is the duly appointed and acting guardian of Mrs. Goodloe; that in his fiduciary capacity aforesaid, Ward Goodloe has been guilty of flagrant misconduct in various particulars, which, in the view we take of this case, it is unnecessary here to set out in detail; that the estate of Mrs. Goodloe is thereby suffering from waste and mismanagement; that relators filed in the Probate Court of St. Louis County, the court having jurisdiction of the person and estate of said guardian and his ward, their motion to have him removed upon the grounds above mentioned and for the appointment of another in his stead; that their motion was overruled, and that relators thereupon duly appealed from the order of the probate court overruling their motion to the circuit court above named; that in the circuit court, the guardian filed a plea to the jurisdiction of the circuit court and a motion to dismiss the appeal, upon the ground that no appeal was allowed by law in matters of this sort, and upon the further ground that appellants in that proceeding (relators here) had no such interest in the proceedings as would entitle them to prosecute an appeal; that said motion was sustained, and said appeal was dismissed upon the ground last above named. Relators also set forth in their abstract a memorandum opinion filed by respondent at the time he dismissed the appeal. This memorandum is as follows:

"I have carefully considered the authorities cited by able counsel on both sides in this case and am still in doubt as to whether an appeal will lie in a case of this sort. The doubt, perhaps, ought to be resolved in favor of the appellants for the right of appeal ought to be construed liberally.

"I have been favorably impressed, however, by appellee's contention that appellants have no interest in the estate which entitled them to an appeal. As is stated in Sanborn v. Carpenter, 140 Wis. 572, 123 N.W. 144, no legal rights of appellants in or to property are affected. A next of kin or heir apparent has no right or legal interest in the property of a living relative and therefore cannot be 'aggrieved' by the decision of the probate court in this case. Wherefore, they have no 'standing in court,' and the motion to dismiss the appeal will be sustained."

I. The question which first confronts us in this case is whether or not mandamus will lie under the facts above set forth. Respondent asserts that if relators have any remedy it is by appeal. To this contention we cannot agree. It is alleged in the application and set forth in the memorandum filed by respondent in the original case that the appeal from the probate court was dismissed in the circuit court for the reason that, as respondent decided, the appellants (relators here) had no such interest in the proceedings as entitled them to appeal from the judgment of the probate court. Respondent so held because the appellants were, as was admitted, sons of the ward, who is still living, and, since no one is heir to the living, appellants had no standing in court.

It is plain that this question in no sense goes to the merits of the case. It is a purely preliminary matter, necessary to be determined, it is true, but standing in much the same relation to the appeal in the original case, as would a question as to the sufficiency of the service of a summons stand in any ordinary suit when the sufficiency of service was properly drawn in question. In other words, it goes to the jurisdiction of the court.

We have repeatedly held in such cases that when the trial court erroneously rules adversely on such a question, and declines to hear the case upon the merits, an appeal is not an adequate remedy, and mandamus will lie. [State ex rel. v. Shackelford, 263 Mo. 52, 59, 172 S.W. 347; State ex rel. v. Homer, 249 Mo. 58, 66, 155 S.W. 405.] In the Homer case, supra, the question is discussed at some length and numerous authorities are cited in support of the doctrine there announced. It would be useless to repeat those arguments or again to cite those authorities here. We rule this point in favor of relators.

II. Respondent contends that no appeal lies from the probate court to the circuit court in such a case as is here involved. The right of appeal is of purely statutory origin. Unless, therefore some statutory authority can be found for an appeal in this instance respondents contention must be sustained.

Section 289, Chapter 2, Article 12, Revised Statutes 1909, relating to appeals, omitting irrelevant portions, reads as follows:

"Appeals shall be allowed from the decision of the probate court to the circuit court, in the following cases: . . . Fifteenth, and in all other cases where there shall be a final decision of any matter arising under the provisions of Articles I to XIII inclusive, of this chapter."

This section, it will be observed, is specifically limited to matters "arising under the provisions of Articles I to XIII."

The matter in hand relates to the removal of the guardian of a person of unsound mind, and arises under and is governed by the provisions of Article 19 of this chapter.

Another statute relating to probate courts, however, is as follows:

"All probate courts and the clerks thereof shall be governed in all things by the provisions of Articles I to XIII, inclusive, of this chapter, so far as they may be applicable to their jurisdiction and duties." [Sec. 298, Chap. 2, R. S. 1909.]

Relators contend with some degree of plausibility that Section 289 supra, is, by the provisions of Section 298, made applicable to Article 19 of Chapter 2, as fully as to Articles One to Thirteen of that chapter, and that an appeal would lie in this case by virtue of these two sections alone. This argument is not without force in view of the fact that...