The State ex rel. Baker v. Bird

• Decision Date: 24 December 1913
• Citation: 162 S.W. 119,253 Mo. 569
• Parties: THE STATE ex rel. CORNELIUS B. BAKER et al. v. DANIEL E. BIRD et al
• Court: Missouri Supreme Court

162 S.W. 119

253 Mo. 569

THE STATE ex rel. CORNELIUS B. BAKER et al. v. DANIEL E. BIRD et al

Supreme Court of Missouri

December 24, 1913

Writ allowed.

E Wright Taylor for relators.

(1) The cause on its merits and the appeal thereof are not now submitted, and argument to the merits is improper. State ex rel. v. Henderson, 164 Mo. 360; Wand v Ryan, 166 Mo. 648; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Dearing, 180 Mo. 62. (2) No jurisdiction is vested in the circuit court on appeal from the probate court to enforce its appellate decision and it is the duty of the circuit, after trying the matter de novo, to certify its findings to the probate, for execution there. R.S. 1909, secs. 294, 296, 297; Branson v. Branson, 102 Mo. 613; State ex rel. v. Henderson, 164 Mo 347; State ex rel. v. Guinotte, 156 Mo. 520; Woerner, Am. Law of Adm. (2 Ed.), sec. 547, p. 1202, sec 549, p. 1208; Rice, Am. Probate Law & Practice, ch. 20, pp. 457, 458, 463. (3) The probate court has exclusive jurisdiction over guardians of minors. Constitution, art. 6, sec. 34; R.S. 1909, sec. 4056; Johnson v. Beasley, 65 Mo. 250; Hoffman v. Hoffman, 126 Mo. 493; Brewer v. Cary, 148 Mo.App. 193. (4) The statute provides for an appeal and the appeal operates as a supersedeas. R.S. 1909, secs. 463, 291, 292, 294, 2038, 2040, 2042; State ex rel. v. Allen, 92 Mo. 20; Cuendet v. Henderson, 166 Mo. 657; State ex rel. v. Field, 37 Mo.App. 83; State ex rel. v. Collier, 62 Mo.App. 38; King v. King, 73 Mo.App. 78; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Dillon, 98 Mo. 90; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Klein, 137 Mo. 673; Ryans v. Boogher, 169 Mo. 685; Carroll v. Reid, 158 Mo. 319; Lewellyn v. Lewellyn, 87 Mo.App. 9; State ex rel. v. Wood, 142 Mo. 127; In re Van Loan, 142 Cal. 429; Walker v. Maddox, 97 Ga. 386; Woerner, Am. law of Adm. (2 Ed. 1899), secs. 543, 546, 547, 548, 550; Rice, Am. Probate Law & Practice, pp. 463-468; Church, New Probate Law & Practice (1909), p. 227; Powell, Law of Appellate Proceedings, p. 371; 2 Ency. Pl. & Pr. 327, and vol. 20, pp. 1240, 1241, 1229.

Monroe & Roark and Hogsett & Boyle for respondents.

(1) The substance and meaning of section 420 are that the guardianship of a minor shall not be committed to a person of opposite religious persuasion from that of the parents or surviving parent of such minor, when a suitable person of like faith is available. This case falls squarely within the spirit and letter of that provision. Voullaire v. Voullaire, 45 Mo. 602; In re Doyle, 16 Mo.App. 159; In re Kellar's Minors, 5 Ir. Ch. Rep. 328, 5 Am. L. Reg. (O. S.) 561; 15 Am. & Eng. Ency. Law, 50, note 4; Everesley's Domestic Relations, 658; Schouler's Domestic Relations, secs. 316, 341; Matter of Ann Turner, 19 N.J.Eq. 435; Woerner on Guardianship, p. 99; Underhill v. Dennis, 9 Paige, 202; In re DeMarcelin, 24 Hun, 207; In re McConnon, 112 N.Y.S. 590; In re Crickard, 102 N.Y.S. 440; In re Jacquet, 82 N.Y.S. 986; F. v. F., 1 Chan. Rep. (Eng.) 688. It was contended below by counsel for relators that the statute in question applied only in instances where one or both parents are still living. There is no basis for any such contention. Respondent claims that if the statute should be held to apply it is unconstitutional, for the reason that it is in conflict with section 5 of article 2 of the Constitution. It is apparent from this section of the Constitution that the office or trust referred to therein is an office or trust of public character, such as, for instance, the office of Governor. It does not refer and obviously was not intended to refer to the appointment of a guardian, or administrator, or receiver, or any office of a similar character, all of which offices are not in the true sense public offices or trusts at all, but are in their nature private offices affecting only the relations of very few persons. 6 Words and Phrases, p. 4921. This statute was not enacted to prevent but to preserve religious freedom, and to insure and protect religious freedom in its fullest sense. (2) Pending appeal from an order of removal of a guardian his right to the custody of the ward is suspended. 21 Cyc. 60; State v. McKown, 21 Vt. 503; Merrells v. Phelps, 34 Conn. 109; Gray v. Park, 155 Mass. 433; State v. Probate Judge, 17 La. 432; Successor of Menendez, 29 La. Ann. 408; Woerner on Guardianships, p. 116; State ex rel. v. Dearing, 180 Mo. 53.

BROWN, J. Lamm, C. J., Woodson, Walker and Faris, JJ., concur: Graves, J., concurs in result; Bond, J., dissents.

OPINION

In Banc.

Prohibition.

BROWN J. --

Prohibition in this court to prevent further proceedings by respondent Daniel E. Bird, as judge of the circuit court of Jackson county, Missouri, under a citation to plaintiffs for contempt, in failing to deliver a minor into the custody of respondent George A. Dixon, pursuant to an order entered by said circuit court.

A brief history of the judicial proceedings which resulted in the citation for contempt is necessary to a full understanding of the issues in this case.

On July 22, 1911, one Charles Dixon, a resident of Jackson county, Missouri, the father and only surviving parent of Charles Dixon, Jr., departed this life, without having nominated any person as testamentary guardian of his said minor child.

On August 1, 1911, the probate court of Jackson county appointed the plaintiffs, Cornelius B. Baker and Susan M. Baker, his wife, as guardians of the person of the said minor (Charles Dixon, Jr.). Susan M. Baker is the maternal aunt of said minor. The said guardians received said minor into their custody and gave bond for the faithful performance of the trust cast upon them by the law.

On September 25, 1911, a petition was filed in the probate court of said Jackson county praying that the appointment of plaintiffs as guardians of the person of said minor (Charles Dixon, Jr.) be revoked, for the reason that said guardians were not of the same religious faith or persuasion as the father of said minor. Said petition is in words and figures as follows:

"Now comes Cosmos Dixon, of St. Joseph, Missouri, and Thomas Dixon, Ella Dixon and Louise Dixon, of Junction City, Kansas, and state that they are brothers and sisters respectively, of the late Charles Dixon, who, at the time of his death on July 22, 1911, was and for several years prior thereto, had been a resident and domiciled in Kansas City, Missouri, and that they are, and the deceased, Charles Dixon, at the time of his death and long prior thereto was of the Roman Catholic faith and persuasion, and that by virtue of these premises said petitioners are interested in the matters herein stated and prayed for.

"That Cornelius B. Baker and Susan M. Baker, husband and wife, were appointed by this court on the 1st day of August, 1911, guardians of the person of Charles Dixon, Junior, an infant eleven years of age, who is the only surviving child of the late Charles Dixon hereinbefore mentioned; that the mother of said infant, Charles Dixon, Junior, departed this life prior to the death of said Charles Dixon. That section 420 of the Revised Statutes of Missouri of 1909, provides that in such cases minors shall not be committed to the guardianship of a person of a religious persuasion different from that of the child's parent who last survived. That said Charles Dixon, Junior, was baptised and reared in the Roman Catholic faith and persuasion continuously up to the date of the death of the said Charles Dixon, the parent who last survived. That Charles Dixon, deceased, was of the Roman Catholic faith and persuasion. That neither the above mentioned Cornelius B. Baker nor Susan M. Baker is of the same religious faith and persuasion as that of the late Charles Dixon; that Cornelius B. Baker and Susan M. Baker were appointed without reference to or the attention of this court being called to the provisions of the statute hereinbefore mentioned; that the said petitioners neither knew of nor consented to the above mentioned appointment; that George Dixon, who is a brother of said Charles Dixon, deceased, and now is and for many years last past has been a resident and citizen of Kansas City, Missouri, was raised in and during his life has continuously been of the Roman Catholic faith and persuasion, is a person suitable to be appointed guardian of the person of Charles Dixon, Junior, and is willing to accept the guardianship and act as the guardian of the person of said minor, Charles Dixon, Junior.

"Wherefore, your petitioners pray that the letters of guardianship of the person of said Charles Dixon, Junior, issued to the said Cornelius B. Baker and Susan M. Baker, be revoked, and that the order appointing the said Cornelius B. Baker and Susan M. Baker as guardians of the person of said minor be set aside, and that said George Dixon, or, if for any reason he be deemed unsuitable, some other person of the Roman Catholic faith and persuasion, be granted letters of guardianship of the person of said Charles Dixon, Junior, for the reasons above set forth. And that said letters were granted without reference to or compliance with said statute. And there is a suitable person of the same religious persuasion as the said Charles Dixon, deceased, who is willing to accept the appointment as guardian of the person of said Charles Dixon, Junior."

It is conceded by plaintiffs that all the allegations of fact in the foregoing petition are true, except the averment "that petitioners neither knew of nor consented to the appointment of the plaintiffs as guardians." It is admitted by respondents that John T. Dixon, one of the petitioners, and George Dixon, another brother of the minor's father, were present in the probate court when the plaintiffs were appointed guardians, and...