Zeitinger v. Drewes
| Decision Date | 14 February 1949 |
| Docket Number | 40807 |
| Parties | Fred C. Zeitinger, Appellant, v. Charles Drewes, Orville Van Stratton, Thomas Ryan, J. Walter Schultz, William T. Powers, A. G. Templeton, Elmer Chatman, Respondents |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.
Affirmed.
F. D Chilott for appellant.
(1) Jurisdiction of the person of a defendant in proceedings in personam, in the absence of waiver of process or voluntary appearance, is conferred on the court only by service of original process within the territorial jurisdiction of the court as defined by law, unless positive law expressly authorizes service of process in some other manner. State ex rel. Finch v. Duncan, 192 S.W. 950, 195 Mo.App. 541; State ex rel. Gardner v. Hall, 282 Mo. 425; State ex rel. St. L. Kennett & So. R. Co. v. Wear, 135 Mo. l.c. 258; State ex rel. Davis v. Ellison, 276 Mo. 642; Yates v. Casteel, 49 S.W.2d 68, 329 Mo 1101; Hankins v. Smarr, 137 S.W.2d 499, 345 Mo. 973; State ex rel. Minihan v. Aronson, 165 S.W.2d 404, 350 Mo. 309. (2) The territorial jurisdiction within which probate courts of Missouri can exercise original jurisdiction is limited to the county in which letters testamentary or of administration are granted. Secs. 34, 35, Art. 6, Constitution of Missouri, 1875; Sec. 5, Art. 1, p. 3, R.S. 1939; Scott v. Royston, 223 Mo. 568, 123 S.W. 454. (3) The only extra-territorial jurisdiction given probate courts is in "Proceedings against Executors, Administrators and their sureties." Sec. 282, Art. 11, Ch. 1, p. 67, R.S. 1939. (14) By granting probate courts power by Sec. 282, Article 11, Chapter 1, R.S. 1939, for disobedience to any order made by them to issue attachments for the body, etc., and cause such process to be served in any county in the State in proceedings against executors, administrators and their sureties by implication restricted this proceeding to this class of cases. State ex rel. Barlow v. Holtcamp, 14 S.W.2d 646; Ex parte Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; In re Knaupe, 144 Mo. 653, 46 S.W. 151; Heidelberg v. St. Francois County, 100 Mo. 70. (5) The proceeding instituted against the plaintiff in the Probate Court of Wayne County on January 8, 1943, was a civil suit. State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567; State ex rel. Peper v. Holtcamp, 235 Mo. 232, 138 S.W. 521. (6) The Probate Court of Wayne County had no jurisdiction to adjudge the plaintiff guilty of contempt and order his arrest and detention "Forthwith" on January 25th, 1943. Secs. 2028-2032, Art. 1, Ch. 10, pp. 549-550, R.S. 1939; Ex parte Clark, 208 Mo. 121, 106 S.W. 990; Carder v. Carder, 227 Mo.App. 1005, 61 S.W.2d 388; In re Letcher, 269 Mo. 140, 190 S.W. 19. (7) The order issued by defendant Templeton to defendant Chatman on January 25, 1943, for the arrest and detention of the plaintiff showed upon its face that it was illegal and void for want of jurisdiction in defendant Templeton to make such order. See Authorities under Point (6). (8) When private persons voluntarily cause the arrest and detention of a party in a civil suit it is incumbent upon such private person to find a record that will support the process, and false imprisonment will lie if the writ is issued without jurisdiction. Tiede v. Fuhr, 264 Mo. 622, 175 S.W. 910.
George L. Stemmler, City Counselor, and John P. McCammon, Associate City Counselor, for respondents.
(1) All the questions here raised were determined against the plaintiff in the Springfield Court of Appeals in a case in which Walter Schultz, a defendant here, was plaintiff, and Fred C. Zeitinger, defendant here, was plaintiff. In re Jacobs Estate; Schultz v. Zeitinger, 188 S.W.2d 956. (2) The Probate Court of Wayne County had jurisdiction of the matter in which plaintiff was served with an attachment, and the holding of the Springfield Court of Appeals that the probate court had such jurisdiction is conclusive. 1939 R.S. Mo., Secs. 4, 5, 63-66, 282; In re Jacobs, supra; McKay v. Snider, 354 Mo. 674, 190 S.W.2d 886; Texier v. Texier, 342 Mo. 1220, 119 S.W.2d 778. (3) The power of a probate court to issue attachments which may be served in counties other than that in which issued is expressly given by statute. Secs. 63-66, 282, R.S. 1939. (4) The question of contempt does not enter into this case, since it nowhere appears that plaintiff was adjudged guilty of contempt. In re Clark, 208 Mo. 121.
Wm. T. Powers pro se, for respondents.
(1) All questions as to jurisdiction of Probate Court of Wayne County over the person of appellant in the proceedings in that court, on the illegality of which appellant attempts to bottom his alleged cause of action in the case at bar, were briefed and submitted to the Springfield Court of Appeals by the appellant in this case, and were by that court determined against appellant's contention here. In re Jacobs' Estate, Schultz v. Zeitinger, 188 S.W.2d 956, 238 Mo.App. 833. (2) There is nothing in Section 5, R.S. 1939, cited by appellant, which in any wise touches upon the duty of an administrator to collect and preserve the assets of an estate. The "territorial jurisdiction" of the Probate Court of Wayne County, Missouri, is of a matter of course limited to Wayne County, as the situs of the proceedings, and the Wayne County Probate Court was the "only" and "proper" court for the institution of the proceedings, but service of its process in the proceedings outside the County of Wayne was and is authorized by statute. Secs. 5, 282, R.S. 1939; In re Jacobs' Estate, 188 S.W.2d 956, 238 Mo.App. 833. (3) Section 282, R.S. 1939, gives a probate court authority to have its process served in any county in the State of Missouri in proceedings for the discovery and recovery of assets of an estate; and is not limited to Article 11, but applies to Articles 1 to 13 of Chapter 1, on Administration, R.S. 1939. Sec. 282, R.S. 1939; Schultz v. Zeitinger, 188 S.W.2d 956, 238 Mo.App. 833. (4) The proceeding instituted against appellant in the Probate Court of Wayne County on January 8, 1943, was a special proceeding authorized by statute for the discovery and recovery of assets of an estate unlawfully withheld by appellant, and not a "civil suit" in the sense claimed by appellant. Secs. 63-67, R.S. 1939; Schultz v. Zeitinger, 188 S.W.2d 956, 238 Mo.App. 833. (5) The Probate Court of Wayne County, Missouri, had full authority and exclusive jurisdiction to proceed as it did in attaching appellant for disobedience to its orders. Secs. 63-66, R.S. 1939; Schultz v. Zeitinger, 188 S.W.2d 956, 238 Mo.App. 833. (6) The writ issued by Judge Templeton on January 25, 1943, was and is on its face a valid writ, issued by a court of competent jurisdiction, on regular and valid proceedings, and protected all officers executing same. The holding of the Springfield Court of Appeals on appeal by the appellant in this case is conclusive on appellant here as to all matters decided therein. Secs. 4, 5, 63-66, 282, R.S. 1939; In re Jacobs, supra; McKay v. Snider, 354 Mo. 674, 190 S.W.2d 886; Texier v. Texier, 342 Mo. 1220, 119 S.W.2d 778. (7) The writ being legal, issued by a court of competent jurisdiction, and the record supporting the process and its legality, the point raised by appellant in this case under paragraph (8) and the case cited is not in issue at this stage of this case. Statutes and cases cited above.
Plaintiff Zeitinger filed suit in the circuit court of the City of St. Louis praying judgment for $ 30,000.00 for false arrest. Defendants Drewes, Van Stratton and Ryan are police officers of that city; defendant Schultz is administrator of the estate of Anna Jacobs, deceased, in process of administration in Wayne County; defendant Powers is attorney for the estate; defendants Templeton and Chatman are, respectively, probate judge and sheriff of Wayne County. At the close of plaintiff's case the court sustained the joint motion of defendants for a directed verdict and rendered judgment for defendants. Plaintiff appeals.
In January, 1943, Schultz filed an affidavit in the probate court of Wayne County, under Section 63-66, [Revised Statutes of Missouri, 1939, Mo. R.S.A.] alleging that Zeitinger, a resident of St. Louis City, was wrongfully withholding money belonging to the Jacobs estate and praying that he be cited to appear before the probate court to answer interrogatories. A citation was issued requiring Zeitinger to appear in the probate court on a day named, and was served upon him in St. Louis by the sheriff of that city. He failed to obey the citation. The probate court issued an attachment for him under which he was arrested and returned to Wayne County. Interrogatories were filed, a trial was had in the probate court resulting in a verdict and judgment in favor of Zeitinger. This was reversed upon an appeal by the administrator to the circuit court, where a verdict was returned and judgment rendered in favor of the estate. Zeitinger appealed to the Springfield Court of Appeals where the judgment of the circuit court was affirmed. [238 Mo.App. 833, 188 S.W.2d 956.] Zeitinger paid the judgment and then brought the instant suit for false arrest, which he lost and appealed to this court.
Appellant contends in this court, as he did in the court of appeals, that the attachment issued by the probate court was void because the court lacked jurisdiction to cause the writ to be served upon him outside the limits of Wayne County.
True our statutes limit the jurisdiction of a probate court to the county in which it is located. It cannot act as a court in any other county and it did not do so in this case. Both the...
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