118 Mo. App. 262 | Mo. Ct. App. | 1906
(after stating the facts). — -The point to be first considered is the effect on Isaac T. Keele’s right to move in the probate court to vacate the allowance in favor of his mother, of what transpired in the. circuit court when he asked permission to contest the demand. The testimony contained in the present record shows Keele made that request, but does not show definitely the form of the request and its refusal; that is, whether an application was filed and an order denying it entered of record, or whether, on the court’s indicating orally that his opinion was adverse to Keele’s request to be heard, the matter was pressed no further.
“If any executor, administrator, heir or creditor of an estate shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of himself or some credible person, stating that the affiant has good reason to believe, and does believe that such demand has been improperly allowed, and shall furnish satisfactory evidence of that fact to the court, and further, that notice has been given the opposite party or parties in interest, the court shall vacate such order of allowance and try the matter anew, and allow or reject such demand, as shall be right; and if, upon such new hearing, such demand shall be allowed, it shall be classed and paid as if such new hearing had not been granted.” [R. S. 1899, sec. 214.]
The scope of that section has not been fully defined by adjudications; but in our judgment it was not in
“The question for determination is, whether the de*275 cree of condemnation thus rendered, without allowing the owner of the property to appear in response to the monition, interpose his claim for the property, and answer the libel, was of any validity. In other words, the question is, whether the property of the plaintiff could be forfeited by the sentence of the court in a judicial proceeding to which-he was not allowed to appear and make answer to the charges against him, upon the allegation of which the forfeiture was demanded.
“There were several libels of information filed against the property of the plaintiff at the same time with the one here mentioned. They were identical in their allegations, except as to the property seized, and the same motion to strike from the files the appearance, claim, and answer of the respondent was made in each case, and on the same day, and similar orders were entered and like decrees of condemnation. One of these was brought here, and is reported in the 11th of Wallace. In delivering the unanimous opinion of this court, upon reversing the decree in the case, and referring to the order striking out the claim and answer, Mr. Justice Swayne said: ‘The order in effect denied the respondent a hearing. It is alleged he was in the position of an alien enemy, and could have no locus standi in that forum. If assailed there, he could defend there. The liability and right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and the right administration of justice.’ [11 Wall. 267.]*276 and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to he heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.
*276 “The law is, and always has been, that whenever notice or citation is required, the party cited has the right to appear and be heard; and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear, is in legal effect, the recall of the citation to him. The period within which the appearance must be made and the right to be heard exercised, is, of course, a matter of regulation, depending either upon positive law, or the rules or orders of the court, or the established practice in such cases. And if the appearance be not made, and the right to be heard be not exercised, within the period thus prescribed, the default of the party prosecuted, or possible claimant of the property, may, of course, be entered, and the allegations of the libel be taken as true for the purpose of the proceeding. But the denial of the right to appear and be heard at all is a different matter altogether. . . .
“In the proceedings before the District Court in the confiscation case, monition and notice, as already stated, were issued and published; but the appearance of the owner for which they called, having been refused, the subsequent sentence of confiscation' of his property was as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect of striking out his appearance was to recall the monition and notice as to him. His position with reference to subsequent proceedings was then not unlike that of a party to a personal action, after the service made upon ■him has been set aside. A service set aside is never service by which a judgment in the action can be upheld.
“The doctrine invoked by counsel, that, where a*277 court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction: they are limited to particular classes of actions, such as civil or criminal: or to particular modes of administering relief, such as legal or equitable; or to transactions of a special character such as arise on navigable waters, or relate to the testamentary disposition of estates; or to the use of particular process in the enforcement of their judgments. [Norton v. Meador, Circuit Court of California.] Though the court may possess jurisdiction of a case, of the subject-matter, and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments. It must act judicially in all things and cannot then transcend the power conferred by the law. . . .
“It was not within the power or the jurisdiction of the.District Court to proceed with the case, so as to affect "the rights of the owner after his appearance had been stricken out, and the benefit of the citation to him thus denied. For jurisdiction is the right to hear and determine; not to determine without hearing. And where, as in that case, no appearance was allowed, there could be no hearing or opportunity of being heard, and therefore could be no exercise of jurisdiction. By the act of the court, the respondent was excluded from its jurisdiction.”
Respondent not having been concluded by the judgment of the circuit court, but standing as fully invested with the right of an heir to proceed against the allowance as if he had not appeared and asked leave to resist it, we have to determine next the extent of the right conferred on him as an heir by section 214 of the statutes.
“The plain and obvious object the laAvmaker had in view in so amending the statute was to afford the administrator, executor, heir, or creditor of an estate, having reason to believe that an improper allowance had been made against the estate, an opportunity to have the same, within four months thereafter, set aside and the matter tried aneAV, and this, too, whether notice of the presentation is given to- the representative or. his agent. And this statutory enlargement of the jurisdiction of the probate court does not, in any way, alter or affect the jurisdiction of the circuit courts exercising equitable jurisdiction.”
A similar view of the statute was taken in Gaither v. Mason, 106 Mo. App. 354. We hold that Keele as an heir of his deceased brother, was entitled to move within four months after the alloAvance of the demand, for its vacation, unless the right did not exist because the allowance was ordered by the circuit court instead of the probate court; a question to which we shall advert presently.
But it is said that section 214 requires the party moving to vacate a demand, to furnish satisfactory evidence to the court that the demand was improperly allowed. We do not understand the statute to mean that the mover must give such proof against the allowance
But it is strenuously insisted that as the demand was allowed originally in the circuit court and certified back to the probate court for classification, the latter court could not vacate the judgment of its superior court or entertain a motion for that purpose. The proceeding to establish the demand got into the circuit court by force of section 1760 of the statutes; which provides that when a judge of probate is interested in a cause or proceeding involving an estate, or has been of counsel, or a material witness,'or is related to either party, lie shall not sit if any party in interest shall object in writing verified by affidavit; but the proceeding shall be certified to the county court or circuit court for hearing and determination, and the clerk of the county or circuit court shall deliver to the probate court a complete transcript of the judgment or decree entered in the cause. It will be observed that a probate proceeding in which a probate judge is disqualified may be certified either to a county court or to a circuit court; and we conceive that when this is done the proceeding does not lose its probate character, but is governed by the administration law, except in matters of practice. We are not called on to determine that a judgment entered on a demand by the circuit court, in a case which had been certified to it, could be vacated by the probate court at the instance of an heir or creditor, for matters which had been in issue and formally tried and determined in the circuit court. Neither need we decide that if issues are joined over a demand in the pro