*1 f premises period occupancy by o the Sarkesians. It CC., Ferguson Hyde, ordered. concur. is so C., adopted foregoing opinion by Bradley, PER .(cid:127) —The CURIAM Lucas, concur, the-judges All the court. sitting. Trustee L. Clark, State of Missouri at relation of James Mary unde Mary M. Fortney, Estate of Katherine Parker Relator, v. Albert G. Parker, r Testament the last Will and Ewing Reynolds C. Hopkins M. B. Robert 119 S.W. Appea City Court Judges the Kansas l s. 971. Banc, September 1938.* en Court Opinion May Term, August 8, *NOTE: filed motion for rehearing filed; Term, September September 28, overruled at motion *2 Jayne M. E. relator. *3 Campbell respond Jost, L. Lester G. Seacat
Henry John ents.
ELLISON, City Court judges J . Certiorari to the Kansas of of bringing National up the ex rel. v. in State Clark Surety Co., opinions by (2d) 616, S. W. which includes Shain, J., opinion J., P. a incorporates and also of a third by Reynolds, Estate, C., App. in re Parker’s Trust those The facts in detail be obtained from cases. We condense them here.
One Parker, Charles S. Davis was executor of O. the estate of Albert deceased, and trustee a by also of trust fund of about created $3000 his will. When signed Davis his made final settlement the estate probate papers filed receipt a acknowledging voucher of the trust fund himself as from trustee himself as executor. But he eighteen was in fact then, insolvent or at least when he died opinion months later. P. quoting from the (then Commissioner), J. nothing states there was Reynolds, to voucher show Davis had the trust transferred himself to trustee, as and he never did account it. His successor trustee sued the Surety Company, National in had bonded Davis capacity judgment obtained a on the bond circuit upon court a based finding by sitting the court as a jury. The bond was as follows: Surety Com- principal National
“We, Davis, Charles S. to indebted pany, surety, acknowledge ourselves owe or stand $6,000.00, in the upon the State Missouri sum condition ap- the said in the matter Charles S. Davis has been above entitled receive, charge pointed take Circuit Court aforesaid $3128.39. To therefrom pay of and administer the sum of income Mary pay during' M. Parker her life and her death said sum earning Mary Fortney. thereon undistributed Katherine Now, faithfully perform Charles Davis shall well the said trust, money, said obligation over and then pay account for aforesaid void, otherwise to remain force.” appeal, respondent judges On reversed out- grounds. of the circuit on two first court proper surety only protected construction money actually coming trustee; into Davis’ hands as proof receipting aforesaid of his execution of the voucher for the prima trust fund was not evidence facie actual transference from himself as executor to himself as trustee. Stand- ing alone it was in the nature transferring mere book entry liability, opinion. being naked This said evidence *5 point, holding was that there had been a of proof failure on the issue. Clark; successor as relator maintains ruling this II, 20, Sections Missouri,
violated 15 and Article Constitution of in
71 deprives of his bond, him obligation of impaired it see con that these process due of law. cannot property without We Section the -case. anything with .to -do- provisions stitutional law, post impairing 'or law prohibits passage any 15 ex of. facto operation. retrospective It-has obligation, or fruits contracts of-legislation and the section relates to been the-enactment .held s. Paving Co., Asphalt v. Barber decisions not. to court [Hilgert cited, 329, 72 other- section- 1070, 173 W. 319, Mo. S. 1072.] private property -private use 20, taking forbids the Section - conditions, the construc has no-reference to upon certain Sec assume -meant to shall relator refer to tion of contracts . we But per that no which Constitution, provides tion Article II. 30, process life, liberty property-without due deprived or son shall be important question. more law, pass on to.a must necessarily Constitution, relator appealing thus bond-by respondents’ surety put construction mean that the - rights. thereby constitutional opinions was erroneous and violated any of this decision- But not contend contravened does their Sec vigorously maintains since contrary relator court. On provides-“the Su 8 constitutional 1884 tion Amendment.of ap preme superintending shall have control-over courts- of Court certiorari,” mandamus, prohibition and peals by follows-that power by Appeals within keep, the‘Courts of court has certiorari proper bounds when their violate the Constitution or a stat regardless they, controlling or ute, whether do -not contravene do superintendence court. The latter decision of this exercised in the instance, says relator, 8, really is not Amend referrable Section amendment, 1884, ment of but to 6 of that provides Section rulings any question previous Supreme “the last Court cases, equity shall, controlling authority of law or in all said appeals.” he insists courts has to raise consti So question certiorari, notwithstanding this court never tutional has question. passed agree proper We certiorari remedy relator that con- constitutional, appellate court legal
fine an within the of its limits record, authority by quashing Aquamsi its State ex rel. Co. v. Land Hostetter, 79 465; 336 (2d) 463, S. W. ex rel. State Robertson, Gilman v. And agree that further of Appeals when a Court has jurisdiction exercised it, or jurisdiction even when vested exceeds its by under- taking powers, may quash to exercise unauthorized its opinion with- out reference of conflict with our decisions. ex Long Ellison, Mo. 571, v. S. W. 986; State Smith, v. Mo. 90, rel. Scott 75 W. jurisdiction But when the Court otherwise render the particular in the quash cause we cannot its un- *6 less it If it does controlling of court. contravenes some this latter, the 1884, supra, it violates Section 6 Amendment of of the requires rul Appeals previous of the last Courts to follow the ings making certi court, jurisdiction, of this thereby its and exceeds remedy. go, orari cannot Beyond available as that rule Ap exercising appellate jurisdiction would be Courts the peals, give Third which the Constitution does not us. Smith, National Bank v. City The jurisdiction Kansas Court of have did coming appeal the instant cause to it on court. from the circuit $3,000, action was at law on bond approximately the trustee’s ju no deprive and constitutional or other which would involved, aught risdiction so was far shows. For that as respondents the cause cir appears, ruled in the issues tried appeal. cuit court They and tendered on the bond construed and liability there was no ques held -under the facts. The constitutional tions were first in relator’s motion for raised new trial. And even contend, respond then relator not not now, did does that and contend jurisdiction ents no Neither had case. does claim conflict he respondents’ urges between our and decisions. All he is respondents’ that erroneous construction' of the bond violates his constitutional-rights. In this state of the cannot interfere. record we assignment
Relator’s -next conflict this. It bewill remembered expressed “upon was to be bond condition” that Davis been - appointed receive, trustee pay administer out trust- will-, “Now, in the directed then continues: said'Charles well Davis shall faithfully perform trust, pay said over and account for money, obligation then aforesaid this void, other- wise to in force.” remain Relator part contends as much a was. money, the trust that Davis receive should he should properly got handle it; and disburse-it after if lie his capacity charge as trustee not take did money, especially aft- receipting er for it thereby leading beneficiaries possession, to believe it was in guilty his he was of a breach of the damage bond their they -because could execu- sued they bond if tor’s had known the facts. respondent judges against ruled They contention. de- clared that of the first sentence of the beginning bond “upon words condition” inducement; was mere recital or sole expressed was condition sentence, bond last begin- ning with the “now;” word liability attached actually coming into Davis’ hands. The opinion J., rehearing motion for the introductory said sentence containing “to receive, words take charge of and administer” was broad enough to cover Davis’ dereliction in ostensibly possession assuming fund when not in rulings fact. Relator these asserts Co., Ry. Surety M., conflict with K. & American Co. v. T. W, 92, 102-3, 236 S. slightest bear the
The bond in that does not resemblance case applied par- here. The announced its simply decision of. ticular or principles.for facts rules construction bunds *7 says obligations of by sureties hire. It such a bond executed contracts;- obligations to that of other due are be-construed-like therein; language employed given consideration must be to all the surety; against ambiguities that the. are resolved to be .Evidently, the- circumstances.may relatoras attendant be considered. re- general by violated ory is rules construction were. that these opinions, for that-reason there conflict between spondents’ is - two eases. ......... go to in another into have occasion We had term, v. Hostetter, ex during State rel. 343 present Wors Mo. case 945, (2d) 1072. It has. been held that where 124 S. often W. f general principle a of-law Appeals a o contravenes Court certiorari. rel. by court, we interfere on announced will [State ex Reynolds, 287 Mo. v. American Yeoman
Brotherhood of Becker, 337 1057, 1058(3) ex rel. Himmelsbach ; 229 S. W. State v. subject rule, however, is 343, 341, (2d) 420(1).] That Mo. 85 S. W. declares some Appeals expressly limitations. "When the Court of to a contrary controlling pronouncement general principle of law to quash its without we will principle, on the this court same Ry. v. 340 Mo. rel. K. C. So. Co. regard to the facts. ex [State a when stat 915, The same is true’ (2d) 918.] of' canons meaning under plainly or can have one ute contract gives Appeals by and the Court of this court construction established such er necessary effect of meaning; some other there as much so holding of construction —as roneous is to the rule violate expressly if the rule were denounced. letter things Many the mere beside But instances rare. such are ex may into its construction. statute contract enter or [State (2d)W. 30 325 S. Surety Haid, v. Mo. rel. American Co. open construction— contract is to When the statute or 104.] to Appeals has a
when Court of meaning its is debatable —a its it, to to declare of construction apply, established canons views, we not con though meaning own even according its holdings views, they not in conflict with long cur in those so as are where facts, or similar of this court same based contract. ex rel. Arndt construed the statute or a similar same 1082; rel. (2d) 1079, 38 State ex Cox, v. W. S. 718, 725, 85 W. Superior Hostetter, Co. S. Mineral v. true, (2d) 743, says, were not as the Wors If this case rulings on all
could be asked to review the Courts hinge them, written instruments come before for all would on some also, rule of American construction. State [See, Su rety Haid, Co. v. supra, (IV), Mo. l. c. 960 30 W. l. c. 105(8).]
We think the surety open in this case construction. begins acknowledging signers It by “upon indebtedness of condition” that .appointed David to receive, has been take charge fund, administer might trust etc. It as well have incorporated “whereas” a- and said that whereas Davis been had - appointed trustee to fund, handle disburse the trust etc. The goes bond then say well faithfully shall administer trust) pay over fund, obligation and aeount for the be void. person If some other been had executor and turn had failed to fund Davis trustee, hardly he- would claimed breached his trustee’s bond. There authority is effect person when the same holding one capacity, such as executor, he cannot election responsibility his own shift therefor to his capacity, sureties another merely signing .such *8 receipt a as trustee, when there-is-no actual transference of the fund. Hospes v. Branch, 622, 151 Mo. 52 W. S. respondents sought -evidently to follow that doctrine. Relator has any not therewith, cited later in any decision conflict or .ruling decision the of a trustee are sureties for his in liable fraud fund, receipting a actually which has not been to him. delivered We no find conflict with our decisions that in and rule the absence of such opinion conflict the respondents the of must stand.
. the complains action of assignment of of the The final conflict circuit respondents outright the court reversing of in the at to that one tried the the.fact was law in that the action face .of the, re finding jury a sitting court as a decided on given. or or lator, law instructions asked without declarations of of the Article II Con asserts this was violative of Section Relator right jury, he by that it the of trial in him denied stitution if trial. had been remanded for another have had the case would in .respondents’ opinion regard in is conflict says He also W. 147, Langford’s 197 S. Estate, In re Davis, W. Jordan v. findings Langford the fact the court ease holds that of trial of applied
sitting jury in a in an a at them case law.will verity presumptions to the appellate the same that attach court jury in The Jordan case the find- verdict of a a law case. holds that ing jury gen- sitting giving the a&a and the of facts court of a appeal, law, eral are incontrovertible unless verdict on declarations tried, theory case were showing what the was asked and refused. support This evidence to the is true where there is substantial general finding verdict. But where there is evi- no substantial the appellate dence the court intervene and reverse case. That will the in- In Langford decision. holding of the very the theme is evidence substantial there was no respondents held the stant case arrived They court. circuit the finding for relator in support the it im- holding the conclusion, by construing first, at this coming actually money except for liability sureties posed on the no was that there further trustee; they held the into hands of the the into hands of the showing trust come fund had no evidence mere standing alone, was a receipt, which, trustee his own binding the sureties. entry not bookkeeping showing least a was evidence Relator that there answers trustee, because into hands Davis as the trust fund went apparent Davis, as “It opinion states is Bland, received money of the all turned over the beneficiaries the bond.” was no breach of and, consequently, capacity there thus from an examination Respondents rule . of law. It is not rule they so found facts as matter record general finding jury makes a sitting that if the trial court as a very overturn it. This appellate facts that never can courts law, where there not is no Langford thing case decided was finding. supporting evidence substantial just quoted, in- by Judge It is the statement made true trustee; of the passed into the dicates some trust hands over to the rules so but also that all received turned got In means that beneficiaries short, beneficiaries. According received. to the statement of all that ever together whatever other in all the funds facts considered were never turned Davis have been in trust estate brings first executor Davis as trustee. This facts within the resting surety respondents liability there was no there funds transferred. view all this is no conflict *9 respondents’ opinion Langford between cases. and and Jordan Neither was the in violation Section Article II Constitution. writ of improvidently
For the reasons stated our certiorari was quashed. concur, Douglas, J., sitting All issued and not because member of court when not cause was submitted. Rehearing.
On Motion for ELLISON, says argument J.—Relator failed to understand his assigning respondents’ outright error on reversal of the court, pages of the trial asks us 6 to 10 to reread of his reply position brief. Relator’s is that since the case was an action law jury, tried to the court without a and with no law declarations of given, finding asked or trial court was incontro binding therefore appeal respondents vertible on was thexe support any it, substantial evidence as is Davis, held Jordan v. Estate, Langford’s 72 S. W. In re 1,Mo. opinion in our above. reviewed respondent’s opinion, it was Shain, S. W. held J., showing P. no fund there was substantial evidence trust Davis, came J., into the hands of was the trustee. held Bland, apparent Davis, all beneficiaries turned money thereby he that capacity, received in impliedly conced- ing he receive at of the trust fund. hold- part did least some These ing's are inconsistent with both other, each are inconsistent (cid:127) finding plaintiff trial court’s for the Relator successor trustee. contends this shows there was some evidence that Davis substantial did receive a of the trust stood therefor. accountable assumption says on that “If And in his motion trial: for new the respondents say can as a matter law trustee accounted came money hands, all into they then say can matter of law that fact in proven, they issue was proven or may determine.” (cid:127) But conflicting we cannot there ques- assume was evidence on that Respondents’ tion. opinion on rehearing by motion J., was their last respondents utterance all of the con- They curred therein. apparent held was that Davis as trustee ac- counted for all the trust statement, received. We are bound indulging presumption right action, must assume there no contrary, substantial evidence to the notwith- standing opinion the earlier seem point contrary. We cannot search the for the facts, no and see altering reason for our heretofore delivered. Our writ quashed. certiorari is ordered