166 Mo. 657 | Mo. | 1902
This is an original proceeding instituted in this court to obtain a writ of prohibition directed to the probate court of the city of St. Louis, prohibiting, during
The plaintiff is the sole heir and residuary legatee under the will of Eugene J. Cuendet, deceased. In 1894 letters testamentary were duly issued to Thomas Witt, the executor named in the will, who then qualified and entered upon the discharge of his duties as executor. On December 5, 1899, Witt resigned his executorship. The plaintiff being then of age and entitled under the statute to administer, was by the probate court of the city of St. Louis appointed administrator of the estate with the will annexed, and duly qualified as such administrator by executing and filing a bond in the sum of $340,000, with solvent sureties approved by the court, and thereupon entered upon the discharge of his duties as administrator and took possession of all property and assets belonging to the estate.
On June 15, 1900, Wm. C. Eichardson, public administrator of the city of St. Louis in charge of the estate of Uraine Cuendet (plaintiff’s mother) presented a petition to the probate court disclosing the fact that the estate of Uraine Cuendet had a claim against the estate of Eugene J. Cuendet and asking that the letters of administration theretofore granted to plaintiff be revoked. On September 14, following, the probate court revoked plaintiff’s letters, and appointed Albert Aiple administrator in his stead. Plaintiff then filed a motion to have set aside the order revoking his letters, and during the pendency of this motion, Aiple was permitted to qualify as such administrator.
On September 20, the court overruled plaintiff’s motion to set aside order of revocation, and plaintiff thereupon filed his affidavits for appeal to the circuit court, one as heir and
The petition for the writ.then concludes as follows:
“Your petitioner now alleges that by the orders allowing appeals from the said decree vacating and revoking petitioner’s said letters of administration and by the filing of said appeal bonds, approved and accepted by the said Hon. W. W. Henderson, judge of the probate court, the said judgment and de
“Nor has said Aiple any right, authority or legal standing to demand that your petitioner, Eugene R. Cuendet, should make, with him, said Aiple, final settlement or an accounting of petitioner’s administration of the said estate of E. I. Cuendet, nor has said Aiple any right, or authority or legal standing to demand of your petitioner the delivery to him, said Aiple, of' all the personal property, and delivery to him of all the assets of said estate.
“All of the said acts, orders, decrees and proceedings of the said Hon. W. W. Henderson, judge of the said probate court of the city of St. Louis, State of Missouri, done, entered
“The said property and assets of the estate of E. J. Cuendet now vested in your petitioner under the law and now in the custody and control of your petitioner, and which said probate court and said defendant Aiple seek to divest out of your petitioner, are of the value of at least thirty thousand dollars and a portion of said property and assets now vested in, and in possession of your petitioner, is personal property, of the pecuniary value of at least fifteen thousand dollars.
“Wherefore, your petitioners, imploring the aid of this honorable court, prays to be relieved, and that they may have the State’s writ of prohibition directed to said Blon. W. W. Henderson, judge of the said probate court of the city of St. Louis, State of Missouri, and to said Albert J. Aiple, to prohibit said Henderson, during the pendency of petitioner’s said appeals in said circuit court, and in any other court of competent jurisdiction in which said appeals may be pending, from proceeding further to carry out or enforce the said order and decree revoking said letters of administration on the estate of E. J. Cuendet, and pohibiting him from, by order or decree, in any manner recognizing Albert J. Aiple, as administrator de bonis non with the will annexed of the estate of E. J. Cuendet, and prohibiting him from interfering -with or disturbing said Eugene R. Cuendet as administrator with the will annexed of the estate of E. J. Cuendet, in the administration, custody and control and management of the property and assets of the estate of E. J. Cuendet, except to require him
“And prohibiting said Albert J. Aiple from exercising, during the pendency of the said appeals, any authority as, and discharging any of the duties of, administrator do bonis non with the will annexed of the estate of E. J. Cuendet, and prohibiting said Aiple from demanding of petitioner a transfer and delivery to him of the property and assets of said estate of E. -I. Cuendet, and prohibiting said Aiple from representing or assuming or pretending to represent as administrator, said estate of E. J. Cuendet in any proceeding in said probate' court of the city of St. Louis or in any other court of justice.”
Upon the foregoing application a provisional rule, directed to W. W. Henderson as. judge of the probate court of the city of St. Louis, and Albert Aiple as administrator do bonis non with the will annexed of the estate of E. J. Cuendet by appointment of said court, was issued prohibiting them dur
The defendant moved to quash the temporary writ, assigning as ground therefor that the petition does not state facts sufficient to entitle plaintiff to the relief sought.
. The plaintiff’s right; of appeal from the order of the probate' court revoking his letters of administration being conceded and no question being made that prohibition may properly go to prevent tire execution of process that has been duly stayed according to law, the only question for determination is whether such appeal operates as a supersedeas so as to entitle plaintiff during the pendency thereof to retain the assets of the estate. Eor the proper solution of this question resort alone to the statute is necessary. By section 278 of the Revised Statutes of 1899, of the administration act, after conferring the right of appeal in fifteen different classes of cases, among which being an order revoking letters of administration, it is further provided in said act as follows:
“Section 281. Every such appellant shall file in the court the bond of himself, or some other person, in a sum and with security approved by the court, conditioned that he will prosecute the appeal, and pay all debts, damages and costs that may be adjudged against him. . . .”
Section 283 provides: “Upon the filing of an affidavit and bond and the approval of the latter the appeal shall be granted, but shall not operate as a supersedeas in any other matter relating to the administration of the estate, except that from which the appeal is specially taken. . . .”
By-section 281 it is provided that “when such appeal is taken the clerk shall transmit to the clerk of the circuit court a certified transcript of the record and proceedings relating to the case, together with the original papers in his office relating thereto.”
These statutes seem all-conclusive and self-explanatory. They clearly indicate that the Legislature contemplated by their enactment, that the right of appeal from an order of revocation of letters by the probate court should be conditioned on the giving of the appeal bond prescribed by section 281; and it is also equally as apparent that the Legislature intended a compliance with the requirements of the statute by the party aggrieved should operate to vacate the order or judgment appealed from and to transfer the whole matter of controversy to the circuit court. The Legislature having made the right of appeal in eases of this character conditioned on the giving of the bond provided, by section 281, supra, not only made the giving of the bond essential to the right of appeal, but also, by section 283, provided that the execution and approval of the bond shall give to the appeal the character of a supersedeas. If an appeal taken does not operate to prevent one in whose favor a judgment is rendered, or an order made, from at once receiving the full benefit thereof, in what way can he be said to be injured by the appeal, and why should the appellant be required to give an appeal bond to indemnify the appellee against injury which can never happen ?
Erom a careful reading of the foregoing statutes the conclusion seems to us inevitable that upon compliance with these requirements on part of the appellant in that matter (the petitioner herein) and the granting of an appeal by the probate court, the matter from which the appeal was taken is removed from such court to the circuit court, and the probate court is without further authority 'pending such appeal, to take any further action in regard thereto. The judgment of the pro
If section 283, supra, does not mean that upon the filing of an affidavit for an appeal, together with an appeal bond, and the approval of the latter by the probate court, from any adverse ruling by that court in any of the fifteen cases enumerated in section 278, of the statute, supra, the appeal is to act as a supersedeas in the matter appealed from, then we can find in the language of the section no meaning whatever.
The order appealed from involved plaintiff’s removal from office as administrator of the estate of E. J. Cuendet, deceased, and, the immediate transfer of the property and effects thereof to his successor. Unappealed from, the order of revocation by the probate court, worked a divestiture of plaintiff’s legal title to the entire assets of the estate in his hands, and vested the same in the respondent, Aiple. In a contest between these same parties, in their individual instead of official capacities, for the custody of this property, there would-be no doubt of plaintiff’s right of appeal from the judgment of any court involving his title thereto, and to make such an appeal effective, to have stayed the further execution of said judgment or order, pending such appeal, by the giving of a supersedeas bond, or an appeal bond that would act as a supersedeas. In view of the statutory provisions above mentioned, authorizing appeals from the order and judgments of the probate court, we think that the approval of the appeal bond by the court in this case, offered by the plaintiff, operated as a stay of all proceedings to enforce the order of revocation until the final hearing of the
As we have seen, the statute allowing the right of appeal in the class of cases specified, not only makes the giving of an appeal bond essential to the right of appeal, but also provides that such appeal shall supersede the judgment or order from which it is taken.
This court in the ease of State ex rel. v. Hirzel, 137 Mo. 435, held that the right to an appeal carried along with it the right to make the appeal effective, even where the statute authorizing the appeal does not require an appeal bond, and where nothing is said about an appeal operating as a supersedeas.
The question in that case arose out of the overruling of a motion to vacate an order made by the judge of the circuit court of St. Louis county appointing a receiver to take charge of a certain railroad and its property, pending the determination of a suit in that court against it. From the order overruling the motion to vacate the appointment of the receiver, an appeal was prosecuted to this court, under the authority of the provisions of an Act of 1895, now section 806, Revised Statutes 1899. After the filing of the affidavit for appeal, the amount of the appeal bond was fixed by the court at one thousand dollars, which being provided by defendants was duly approved by the court and filed with the papers in the case. In the meantime the receiver had been put into the possession of the property by means of a writ of assistance, and refused to return same to defendants, notwithstanding the perfection of their appeal and the giving of the appeal bond.
In a proceeding by prohibition against the judge of the circuit court making the order in that case, and the receiver having in charge the property under the court’s writ of assistance, it was held that after the appeal had been duly taken from the order overruling the motion to vacate the appointment
As said above, under the administration statute, which we are called upon to consider at this time, it is expressly provided not only that an appeal may be taken from all orders of the probate court revoking letters testamentary or of administration, but that the appeal bond shall be given in every case in Avhieh appeals are allowable before an order allowing the appeal can be entered, and further that the appeal granted shall operate as a supersedeas in the matter relating to the administration of the estate from which the appeal is taken. The language of the statute authorizing a supersedeas could not well have been more definite; but had it been less specific, in fact, had the provision of section 283, supra, never been enacted by the Legislature, the reason for the existence of such a rule is so manifest, from the other requirements of the statute, that the courts in recognition of them, would find a supersedeas a necessary incident, and so declare its existence, as in the case of State ex rel. v. Hirzel, supra, and State ex rel. v. Klein, 137 Mo. 680.
While it is true, as respondent suggests, that the statute of 1835, under which the above cases were determined, was different from the statute under which the present case is to be considered, in this, that at the time those cases were determined, there was no trial de novo on appeal from the probate to the circuit court, as now, but then the circuit court simply reviewed the error'of the probate courts on exception taken, the law as to an appeal acting as a supersedeas was substantially then as it is now, and the reason for the ruling in those cases is not to be accounted for upon the grounds of the difference in effect of an appeal bond in a case to be tried de novo in the appellate court and where as in an appeal to this court, the trial is upon exceptions taken to the action of the lower court.
By section 5 of article 8, Revised Statutes, 1835, it is provided:
“After such affidavit and bond have been filed, the appeal shall be granted, but- shall not be a supersedeas in any other matter relating to the administration of the estate, except that from which the appeal is specially taken.”
In disposing of the Mullanphy ease the court made the wording of the appeal bond taken, act as a limitation upon the express language of the statute to the contrary, and in that we think it erred.
To hold that the supersedeas as provided in section 283, supra, extended only to those cases where the appellant has been adjudged to pay a debt (as declared in the Mullanphy case) would be not only the substitution of judicial dictum for
It follows, therefore, that the motion to quash filed by respondent should be overruled, and the preliminary rule in prohibition made absolute, and it is so ordered.
