213 Mo. 1 | Mo. | 1908
On the 3d day of October, 1903, Mrs. Mary Strom died in tbe city of St. Louis, leaving a lot of ground fronting on Tbomas street. She left surviving her one daughter by the name of Florence Strom. Mrs. Strom died testate, leaving a last will and testament, by which she devised and bequeathed all of her estate, real, personal and mixed', in trust to her brother "William Forth for the benefit of her daughter Florence Strom until the latter should arrive at the' age of twenty-one years, at which time the trustee was to pay to Florence five hundred dollars, and when the daughter reached the age of twenty-seven the trust estate was to terminate and all the estate to be turned over to the daughter discharged of the trust. Mrs. Strom also left a husband, the appellant herein, Joseph M. Strom.
On December 17, 1903, Joseph M. Strom filed his motion in the probate court to set aside the order directing the executor to take charge of the said real estate and rent the same for the payment of debts. That motion is in words and figures as follows:
“Now comes Joseph M. Strom, husband of Mary M. Strom, deceased, and moves the court to set aside and revoke and annul the order made in the above-entitled cause on the 7th day of December, A. D. 1903, at the instance and request of the executor of said estate, authorizing him to collect the rents on the property in said order described, and for grounds of this motion states:
“That said order is in violation of and contrary to law; that the said Joseph M. Strom is the husband of said Mary Strom and was such at the time of her*4 death; that there was horn of the marriage between said Joseph Strom and said Mary Strom, and there is now living issue, viz., one female child named Florence M. T. Strom, now about — years of age; that the deceased was the owner and seized in fee of the real estate described in said order, being house and premises known as No. 2708 Thomas street, city of St. Louis, Missouri, and now held by one Llewellen Boswell, as a tenant from month to month, at a monthly rental of $22 per month; that by reason of the premises your petitioner, said Joseph M. Strom, has an estate by the curtesy in said property and is entitled to the rents, issues and profits thereof; that said issues, rents and profits by reason of the premises is not liable for the debts of said Mary Strom, deceased, and her executor is not entitled to collect the same; that if said executor be allowed to collect the same your petitioner will be deprived of their enjoyment and defrauded thereby.
“Your petitioner further represents that said order was improvidently made in this that your petitioner had no notice or knowledge of the same until after it was made; that he had no opportunity to make this claim or present to the consideration of this court his rights and interests in and to said property; that the court was not informed and had no knowledge of his rights and interests in and to said property; that your petitioner was not a party to said proceeding, and that by reason of the premises the court had no jurisdiction in said matter, and said order could not deprive your petitioner of his rights and interests in said property.
“Wherefore, your petitioner prays this Honorable Court to malee its order revoking, annulling and setting aside said order made on said 7th day of December, A. D. 1903.”
At the said same term of court on December 19,
I. Before entering upon a consideration of the merits of the errors assigned by the appellant, we must first determine whether this court has jurisdiction of this appeal under the Constitution. The proceeding originated in the probate court of the city of St. Louis and was and is a mere motion by Joseph M. Strom, the surviving husband, to have revoked the order of the probate court directing the executor of Mrs. Mary Strom to take charge of the real estate devised by her to her daughter and apply the rents therefrom to the payment of the debts of Mrs. Strom existing at the time of her death, on the ground that
II. Did the adding of the two constitutional grounds to the motion after the appeal reached the circuit court, so raise constitutional questions that it is incumbent on this court to retain jurisdiction of the appeal? It is elemental in this State that on appeal from a probate court or a justice of the peace, the circuit court must try the case anew upon the same cause of action that was tried in the probate court or in the justice’s court. It is obvious that the two constitutional questions imported into the case presented entirely new issues in the circuit court, issues which the probate court was not allowed to pass on, and this change of the cause of action, so to speak, was unauthorized. The appeal could not give the circuit court greater jurisdiction than the probate court had or change the course of that appeal from the St. Louis Court of Appeals to this court. We have on various occasions held that this court will look deep enough into the record to ascertain whether we have jurisdiction, and we hold now with this record before us that the insertion of these alleged violations of the Constitution in the motion in the circuit court was without authority of law and does not confer jurisdiction on this court of this appeal, and must be treated as an attempt to incorporate matter in the record