Patton v. Williams

74 Mo. App. 451 | Mo. Ct. App. | 1898

Smith, P. J.

Statement — A very brief statement of this case and a reference to 62 Mo. App. 339, and 65 Mo. App. 543, will be sufficient for a full understanding of the questions presented for decision by defendant’s appeal. On the thirtieth day of June, 1893, the * probate court gave judgment for defendants. Within ten days thereafter the plaintiffs lodged their proper affidavit and bond for appeal with the probate judge. The probate court neglected to grant an appeal. On the ninth day of September, 1895, the plaintiffs -made an application to- the circuit court for a rule on the judge of said probate court to grant said appeal, or show cause why the same should not be done, which application was sustained and the rule awarded accordingly. On the ninth day of May, 1896, the probate judge granted the appeal, and then filed with the clerk of the circuit court his return to said rule, accompanied with a transcript of his docket showing that the appeal had been granted. At the September term, 1896, of the circuit court,the defendants filed a motion to dismiss the appeal, based mainly on the ground that the rule made on the probate judge to grant the appeal was unauthorized by law. This motion being denied defendants’ counsel withdrew from the case. The plaintiffs had judgment on the merits and defendants have appealed.

Probate counts * appeals: mandk-

When the plaintiffs lodged' their affidavit and bond for appeal with the probate judge that was all they could do. They could go no further. Nothing more was required of them. Beasley v. Haeberle, 20 Mo. App. 648. The duty then devolved on the probate judge to either approve or disapprove th$ bond, and, if the former, to grant the appeal; if t£e latter, to refuse it. If he delayed the performance of that duty the plaintiffs could not be prejudiced thereby since they had not caused it. It was no fault of theirs that he did not act more promptly. There was but one appeal granted in the cause and it may be safely assumed that the appeal bond was approved before the grant of the same. It was his duty to approve the bond before granting‘the appeal. In the absence of evidence to the contrary the law will presume the performance of this duty. When the bond was approved it then became his further legal duty to grant the appeal. The law enjoined on him the performance of this duty. Its mandate was sufficient without more. It is true that if he failed to give heed thereto resort could have been had to mandamus to compel obedience. But this writ could confer no new or additional authority. Brownsville v. Loague, 129 U. S. 769; U. S. v. Clark Co., 95 U. S. 769. It issues only to compel performance of what was a duty without it. State v. Buhler, 90 Mo. 660. It was as much the legal duty of the probate judge to grant the appeal without the issue of the rule as with it. If he voluntarily granted -an appeal, which he might have been compelled by mandamus to grant, this did not invalidate the appeal. Merrill on Mandamus, sec. 13.

Even if it be true, as the defendants contend, that the superintending control over, inferior courts which is vested by the constitution in the circuit courts can only be exercised by the common law remedial writs of mandamus, certiorari and prohibition, except where otherwise expressly provided by statute, and that the rule awarded to the probate judge was not expressly authorized by the statute and therefore nugatory, still this in no way impaired or affected the validity of the appeal which had been authoritatively granted. Whether the rule was issued with or without authority of law, or was valid or invalid, is unimportant, since the appeal for its validity did not depend upon the existence of either of these alternatives. Obviously in passing upon the propriety of the action of the circuit court in refusing to dismiss the appeal, it is not necessary for us to determine the question whether or not the rule awarded to the probate judge was authorized by law, and therefore any expression of opinión touching that would be no more than a mere obiter dictum.

As was said by us in 65 Mo. App. loc. cit. 552, our order directing the circuit court to dismiss the appeal was in effect an order to strike the case from its docket. Up to that time there had been no appeal granted by the probate court, and therefore there was nothing to dismiss. The legal rights of the parties were just the same after this order of the circuit court was made as they were before it. It did not affect their rights in the one way .or the other.

It follows therefore that the judgment of the circuit court must be affirmed.

All concur.