95 Mo. App. 378 | Mo. Ct. App. | 1902
This is a proceeding to obtain a writ of prohibition to forbid the taking of depositions by defendant, Mr. Wood, a notary public in the city of St. Louis, Missouri.
The plaintiff is Mr. Frederick N. Eekerle. The defendants are. Mr. Augustus M. Wood, the above named notary, the St. Louis Trust Company (executor of the estate of Catherine Linze, deceased) and Henry H. Linze. The last was the husband of said Catherine.
The matter in which the depositions are sought to be taken is an inquiry under the administration law (secs. 74-78, R. S. 1899) for the discovery of assets, said to be wrongfully concealed.
The following facts appear to be admitted.
In November, 1901, letters testamentary were granted in the probate court of the city of St. Louis to the St. Louis Trust Company, upon the estate of Catherine Linze, deceased, pursuant to her will, duly admitted to probate by said court.
The trust company duly qualified and is now in charge of the estate as executor.
January 18, 1902, there was presented to said probate court an affidavit of Henry H. Linze as follows (omitting caption):
“Henry Linze, of .lawful age, being duly sworn, on his oath states that he is the widower of Catherine Linze, deceased, and as such is interested in her' estate; that.he has good cause to believe and.does believe that Frederick N. Eekerle has concealed or embezzled various goods, .chattels, wares, merchandise, household articles, glassware, and other personal property of the deceased, the exact value of which affiant can not state, but which he believes to be over $500, and that said*382 Frederick N. Eekerle lias suck property in Ms possession or under Ms control, and refused to deliver them up to the St. Louis Trust Company, executor of Catherine Linze, deceased, upon demand made therefor.”
The probate court then issued a citation to Mr. Eekerle to appear before the court and be examined on oath concerning the personal property of said estate, under the statute cited.
In response to this citation Mr. Eekerle filed a sworn answer denying the alleged facts and charging that Mr. Linze was not interested in any manner in said estate. And when the examination of Mr. Eekerle came on, the court, at the instance of the attorney of Mr. Eekerle, sustained an objection to the inquiry proposed to be had of Mr. Eekerle, on the theory presumably that the charge was. criminal in its nature, and hence, that Mr. Eekerle coul.d not be required to give testimony against himself in the matter (Const. Mo., 1875, art. 2, sec. 23).
The probate court, March 3, 1902, granted the trust company, as executor, until March 10, 1902, to to file interrogatories in said proceeding against said Eekerle, according to section 75 (R. S. 1899). The interrogatories were filed, March 10, 1902. Thereupon the court made an order (March 15, 1902) giving Mr. Eekerle until March 25, 1902, to file his answer thereto; but no answer appears to have been filed before this proceeding was begun, May 8, 1902.
April 2, 1902, the probate court adjourned for the term and continued said matter to the June term of said court, which will regularly convene on the first Monday in June ensuing.
About May 1, 1902, the trust company caused notice to be given to Eekerle, in usual form, for the taking of depositions of witnesses, May 6, 1902, to be read in evidence in the cause entitled in said notice as follows:
“In the matter of Estate of Catherine Linze v.*383 Frederick N. Eekerle, on citation to disclose assets.”
The place appointed was the office of one of the counsel in the cause and the usual hours were named.
No question of the form of the notice arises.
Mr. Eekerle was also served with a subpoena to appear (at the time and place where the depositions were appointed) to testify in the cause above entitled ■“on behalf of plaintiff.” The subpoena was issued by Mr. Wood (now defendant) as notary public.
At the time and place named for the depositions the notary commenced taking testimony under the notice and continued said hearing the next day, when Mr. Eekerle, by his attorney, came before the officer and stated that he appeared specially to challenge his jurisdiction to take any testimony in the cause.
Notwithstanding this objection it is charged that said notary caused a subpoena to be served upon another person commanding, him to appear in said cause and matter on the following day. It is further alleged that the notary intends to proceed with*the taking of testimony of Mr. Eekerle and other witnesses under said notice.
In this state of the case counsel for Mr. Eekerle applied to the presiding judge of this court for a writ of prohibition forbidding said defendants from proceeding further to take the depositions. A preliminary rule, under section 4451 (R. S. 1899), was directed to defendants, who made a return, to which plaintiff has replied.
The matter was then heard before the court as upon motion to make the rule absolute, and the foregoing facts were developed. The only decisive questions which arise are questions of law.
1. The statute under which it is proposed to take the depositions permits a full investigation of facts concerning any wrongful withholding or concealing of assets of an estate as well as embezzlement thereof. The acts of withholding or concealing such property
2. But is the matter wherein the depositions are proposed to be taken a “suit pending?”
The general law of this State (sec. 2877, R. S. 1899) authorizes the taking of depositions by “any party to a suit pending in any court in this State.”
What constitutes a “suit” is not easy of precise definition. The case in hand only requires us to decide whether or not the proceedings here in question for the discovery of assets of an estate, which are alleged to be concealed, is a “suit” within the meaning of our law.
It was said by the United States Supreme Court in Cohens v. Virginia, 6 Wheat. 403, that “to commence a suit is to demand something by the institution of process in a court of justice!” That definition was reiterated in Ex parte Towles, 48 Tex. 433.
In Weston v. Charleston, 2 Pet. 464, the Federal Supreme Court determined that a writ of prohibition was a suit. In so doing it was declared that:
“The term is certainly a very comprehensive one, and is understood to apply.to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him'. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the pro*385 ceeding by which, the decision of the court is sought, is a suit.”
In McPike v. McPike, 10 Ill. App. 332, it was considered that a petition for a reduction of alimony, filed after a divorce decree, is a suit.
In the Sewing Machine Companies case, 18 Wall. 585, it was said that the word “suit” .applies to “any proceeding in a court of justice- in which the plaintiff pursues his remedy to recover a right or claim. ’ ’
The Supreme Court of Rhode Island, in the matter of Jenckes (6 R. I. 18), held that an application of a party to take a poor debtor’s oath for discharge under the law of that State was a “suit” within the meaning of the law for taking depositions in “any civil suit or action. ’ ’
In Harris v. Ins. Co., 35 Conn. 312, it was said that a suit meant “any proceeding in a court for the purpose of obtaining such remedy as the law allows a party under the circumstances.”
In the case of the Wallis trusts, 23 L. R. Ir. 7, it was held by the master of the rolls in Ireland that the word “suit” is “a term of wider signification than action,” and that it included a petition in the chancery division for the appointment of a representative of certain unrepresented residuary legatees of an estate .in charge of trustees.
In the case at bar, the statutes (secs. 74-78, R. S. 1899) provide a distinct proceeding for the disclosure of assets of an estate in certain circumstances. The proceeding is special, no doubt; but it comprehends all the essential elements of a suit. It presents á moving party, an adverse party, and it requires a decision by a tribunal invested with jurisdiction to determine it. Tygard v. Falor, 163 Mo. 234. The proceeding is one wherein a trial by jury is expressly authorized.
A grant of power implies a grant of all incidental authority necessary to make the principal grant effect
3. But it is further insisted, in the lucid and learned brief for plaintiff, that the probate court has no jurisdiction in the matter of the Linze estate to conduct the inquiry contemplated by section 74 (R. S. 1899), because the moving party is not “a person interested” in that estate. ,That, however, is a question not open for our consideration in this suit for a prohibition. The probate court, by the terms of the statute under discussion, has authority to cite the person charged, and to require him to answer interrogatories after the filing of an affidavit of the executor or administrator or “other person interested in any estate.” It made the citation in tlm instance under review upon the affidavit of Mr. Linze, the husband of the deceased. The order in that behalf amounts to a decision by the probate court that he is interested in the estate. On that fact depends the right to proceed. But whether the decision of that fact by the probate court is right or wrong can not properly be reviewed in a proceeding for a prohibition. Coleman v. Dalton, 71 Mo. App. (K. C.) 14; People ex rel. James v. Surrogate’s Court, 36 Hun 218.
The writ of prohibition can not correctly be used, in ordinary circumstances, to serve the purpose of a writ of error or of an appeal, when those remedies are adequate to the exigency. State ex rel. Johnson v. Withrow, 108 Mo. 1; State ex rel. Williams v. Anthony, 65 Mo. App. (K. C.) 543.
The probate court is a court of record (Macey v. Stark, 116 Mo. 481). It has jurisdiction of the subject-matter of the inquiry; that is to say, it has lawful au
The probate court has authority to pass upon that issue as part of its jurisdiction over the subject-matter of the proceeding. The court is neither without jurisdiction, nor is it exceeding its jurisdiction in the premises.
We discern no valid ground to prohibit the taking of the testimony in said suit by the notary, who is authorized generally to take depositions under the Missouri law (R. S. 1899, sec. 2880).
The preliminary rule is discharged and judgment-directed for defendants.
