46 Mo. App. 371 | Mo. Ct. App. | 1891
The legal question presented for our consideration is raised by the demurrer to the respondent’s answer. The petitioner claims tó be the widow of Patrick B. Bradley, deceased, and, as such widow, she filed in the probate court of the city of St. Louis, Vhere the administration of the decedent’s estate is pending, an application for a widow’s allowance. The public administrator, who had the estate in charge, denied that the petitioner was the widow of the deceased. The petitioner demanded that a jury be summoned to try that issue of fact, which the respondent' refused to do. Hence, this proceeding by mandamus to compel the respondent, as judge of , the probate court of the city of St. Louis, to summon a jury for the purpose stated.
The respondent’s reasons for his action are, that courts of probate in Missouri have no powers not expressly conferred upon them by statutory enactment, or by necessary implication; and that, as the legislature had not authorized the judges of such courts to take the verdict of a jury in proceedings touching the allowances to widows, there was no warrant or authority which would justify a compliance with the demand of the petitioner.
The limitation on the powers and jurisdiction of probate courts, as claimed by the respondent, must be conceded, and, unless section 2131 of the statutes (R. S. 1889) is applicable to proceedings in the probate courts, the peremptory writ must be denied. The section reads: “An issue of fact in an action for the recovery of money only, or of Specific real or personal property, must be tried by a jury, unless a jury trial be waived or a reference ordered as hereinafter provided.” We are of the opinion that this section is not
The practice act (sec. 2165) provides that the court may award a new trial of any issue of fact upon good cause shown. If the petitioner’s position as to section 2131 should be adopted, then it would logicálly follow that probate courts would have the right to grant new trials. But the supreme court, in the case of Bartling v. Jamison, 44 Mo. 141, expressly decided that no such power existed.
Again, the practice act (sec. 2258) provides for a change of venue in civil cases. If this section was intended to cover causes pending in the probate courts, then the enactment of section 3403 in reference to the transfer of causes from the probate courts to the circuit or county courts was unnecessary. In the recent case of Morris v. Lane, 44 Mo. App. 1, this court decided
The case of Hoyt v. Davis, 21 Mo. App. 235, in no way aids the petitioner. What was said in that case of the right of trial by jury had reference solely to the practice in the circuit court. That was an appeal to this court from the circuit court. It was the action of the circuit court on a trial de novo, and not that of the probate court, that was under .review.
The peremptory writ will be denied, and judgment for the costs in this proceeding will be entered against the petitioner.