*1 ‘‘If, any in pending Supreme cause Court, Louis or the St. tbe. of Appeals, judges Court sitting shall equally opin- divided no ion, shall be division; entered therein based on such parties but to the cause may agree upon person, some learned law, special in the to act as judge the pause, who shall therein sit with the give decision in the same manner with same judges. effect as one parties agree upon If the cannot a special judge, appoint the court shall one.”
We hold, therefore, jurisdiction do not have this case. is ordered the same be retransferred to Springfield Court (cid:127) Appeals. Cooley, C., concurs; Bolding, C., absent.. PER foregoing opinion C., CURIAM: —The by Westhues, adopted opinion of court. judges as the All the concur. Howe, Relator, at the relation of A. Frank v.
State Missouri A. Evan Judge of Hughes, County Probate Court for the (2d) of St. Louis . 123 S. W. 105. Two,
Division December 1938. *2 Hensley and Kingsland, Robert Joseph Davis, Lawrence C. T. Campbell for relator. A. Bruce *3 respondent. Frank Shepley A. H.
Ethan Coffman *4 COOLEY, original C . This is an proceeding mandamus, in- stituted petition relator, Howe, against A. Frank respondent, Hughes, A. judge Evan of the Probate Court of St. County, compel Louis to to set aside order of distribution made in an estate being administered in his court and to recall the property pursuant distributed order. al- Our issued, ternative writ commanding respondent things to do those why or show cause should not do so. He here a has filed combined quash motion to the alternative writ and return thereto. Relator, reply filed quash return. The motion this ordered taken with the ease will disposed so considered and of. pleadings
From following appear: facts uncontroverted Respondent judge County. St. Probate Court of Louis process of administration Morey in his the estate Minnie (whom deceased), Howard call the shall who died testate about February-, 1937. She a large By left estate. will her she named only (and beneficiary), her Jr., son and heir H. Howard, Clarence executor, sole He qualified, act bond. being without without re- give quired acting. been bond and has since so Letters of ad- *5 ministration with will were upon probate annexed issued to him n -, will, April, 1937, 1937. February of the relator herein probate against in court a claim for allowance filed the estate million dollars “or in such of deceased for four amount as may be (This hereafter.) fully determined.” will At explained be more Oc- same time relator remove executor. filed motion to 14, 1937, from tober the executor motion to dismiss and strike filed his the files relator’s claim motion remove the executor. said and hearing considering arguments by After briefs submitted parties, probate the executor’s April court on sustained 1938,.re- April 20, claim. On motion and relator’s dismissed said judgment duly perfected appeal of lator an order or dismissing probate his court claim to the Court St. Louis Circuit of said, appeal pending County, was when where and undetermined proceeding this instituted. was Qn 20, 1938, the in first April executor his filed report presented time settlement, and at the filed and same order, petition asking of partial distribution certain asr -probate court, day, of estate. made and sets The on the same approving granting the orders the settlement and entered of.record application partial for partial distribu- distribution. Said order Howard, H. tion authorized executor distribute to Clarence to' (who executor) $565,000 Jr. is the U. sole distributee well as Treasury at $500,000, S. Government bonds and certificates and Castings bonds, $1,065,000 par, Corporation of General Steel a total sought compel respondent The mandamus herein is securities. partial to set aside said of-' order said distrib- $1,065,000 there estate, to return to the utee said of securities adjudicated. $4,000,000 until finally relator’s claim is Said held executor, set- as a final first settlement not intended filed was $4,336,'- aggregating assets tlement and not so treated. It showed alleges Fed- in Relator that the then the-hands of the executor. ex- eral tax -the tax administration estate State inheritance - attorney estate yet paid will have penses, fees, etc., to be- out ex- depletes the an and that assets to such -distribution' an claim should pay there amount insufficient to his tent that remains ultimately be established. pleadings, exhibits therein to and made including The referred thereof, deceased, lifetime, in stock- part the' her was a show Company, corporation. As Steel such of the Commonwealth holder n corporation, ap- received, upon assets of that distribution of she $5,000,000. Relator’s claim founded' a decree proximately, (interlocutory) of the United States District Court Illinois, Septenn made District of and entered the Southern equity instituted in that court re- .action 11, 1.930,- ber Company Steel and others. Nei- against said Commonwealth lator nor, executor, such, as- .death, parties her her since were deceased ther rights was to establish suit relator’s purpose to that suit. *6 patents in certain in the name of and which for had long time by been earnings used said Steel Company, and in the from the use patents, upon theory of the Company the that the Steel held the patents under a parol trust. The decree suit, appealed in that not from, was, fact, in patents determined relator owner of the and thereof, (one entitled to recover reasonable any the if of them value expired), earnings the resulting had and thereof to'the Steel Com- pany, any, rights” less the if value, “shop Company of-the Steel enjoined thereunder. The Federal all of the Court defendants assigning transferring or patents; distributing and “from or attempting any remaining (ital- -distribute . . . of the.-funds ours) ics in corporation anyone or hands said under or acting corporation for said accounting or its stockholders until after herein made, interest,:-if. has been and the any, plaintiff, in property the assets corporation of said .shall have fixed become o.r provided plaintiff and satisfied.” The decree further “that (relator) against have a lien such property possession all assets and in the (a and control of said committee stockholders’ committee) to secure any, the payment plaintiff, of the amount or amounts awarded if un- accounting ordered, adjudged der the and decreed, hereinabove lien shall have said continue such final decree shall become until fixed and satisfied.” year prior
About a Commonwealth Steel Com- said decree pany among stockholders, all of its its inclu- distributed assets (whence $5,000,00.0 ding approximately she deceased received to), cash, except $1,700,000 above referred in in remained rendered, hands of decree was the committee when said which relator was decreed lien. cause, decree the Federal
In and said Court referred take, Chancery report Master in an.account between “to state..and ’’ plaintiff defendant, Company, . and the -Commonwealth Steel any, patents, .value, if' value, reasonable determine corporation’s shoprights “earn- ;any; if of said thereunder. ’’ from, corporation ings any, resulting -if -to said or values use ‘‘ n ordered,-.adjudged lastly, decreed patents; and, the court said jurisdiction of cause is such orders and reserved.for. decrees entry.of a Equity may require final decree until as the Court . herein.” . (cid:127) Court, still pending. in The above mentioned suit the Federal. been, and, completed .shown, so far as no re- accounting not The has Master. final decree No has been port has made .upon $1,700,000 cash, which relator has .a entered. been committee. the stockholders’ hands of lien, still in the n mentioned, In his above claim court relator filed alleges accounting that while Court has been the Federal completed it will sufficiently has “is advanced show be” equity entitled to recover from the defendants ill suit - *7 Company the in the stockholders of Commonwealth Steel a sum conclusion, $5,500,000, (a excess of in nature statement the of — accounting being and showing stage stated), the facts the of not the by of Federal has will accounting that reason and said decree and n against the deceased, have of as stockholder the estate- a former of Steel as a -distributee the assets of Company, Commonwealth and of Sr., his husband, Howard, her IT. one of deceased Clarence and $4,000,000. further al- executors a claim in the of The claim sum husband, July, leges, substance, in and her said in deceased 30,000 '1929, shares of the of Steel at least stock said Com- owned stock; pany, being capital more than one-third of its that deceased’s equivalent preferred in cash all that stock or its and now owns estate Castings Corporation; August, about General Steel of the stock (deceased’s Howard, H. Sr.- father -husband and 1929, Clarence others, two as a all Howard, Jr.), IT. and committee for Clarence of Company, Steel sold the “prop- of the Commonwealth stockholders Castings Company Steel General Steel erty assets” of said to the and $10,000,000 being paid in $35,000,000, thereof' Corporation for over Castings Corporation bal- per preferred cent of and the stock $2,587,397.26 expenses for cash; in that the committee retained ance Company, of authorized distribution liabilities Steel and and Company Steel stockholders of on the of the remainder to the Castings preferred stock of -$225 of cash one of basis and share Stock, 'Company Corporation of Steel for each share Commonwealth following agreement: subject express being all distributions con- acceptance “The from the committee shall any of distributions that he agreement part the receiver thereof stitúté on the of committee responsible obligations debts, for the liabilities and of the him;” that deceased by to the extent of the distribution received $6,750,000- her their distributive shares husband so received as Corpora- $3,000,000- Castings stock preferred in of said in cash and Federal Court $9,750,000; of tion, a total of that at the time said been made (a decree committee substitution said stockholders’ holds, deceased) Sr., now Howard, H. “retained and for Clarence $1,700,000.00, which said approximately under lien of thé $4,000,000.00 pay the- amount to at least insufficient sum is of the above virtue under and claimant entitled which this Court.) (the Federal judgment of the decree and mentioned court” — showing knowledge allegations on contains further claim Howard, Jr., of men- H. Clarence above part deceased assets, Company’s relative of the.Steel tioned facts sale institution and stockholders, proceeds distribution of progress of Federal Court. relator’s suit claim of relator’s length indicated nature have thus at-some We . given by respondent for because reasons of the making the order of dismissing striking files, it from the n n complained of. grounds qüasli a number Respondent’s states motion to referred they.are mention Nos. 5 and specifically alternative writ 4, that They to in the return. are substance: part attached and made there- thereto petition and the mandamus equitable cognizance and purely relator’s claim of show that “is of respondent, probate court subject jurisdiction” that relator’s judge thereof; 5, petition show writ and life- neither deceased in proceedings claim on to which is based her. death, party defend- executor, was a such, time nor her since her now. relationship: ever existed or ant, and that no debtor-creditor *8 deceased; petition exists relator and between that said writ and in proceedings show that claim now pending relator’s is based on deceased, individually, Court, in. equity, the Federal to which neither a executor, such, death, party, in her lifetime her her nor since' was interlocutory judgment'and court where- and decree of said jurisdiction for expressly in said of the cause such reserved equity) require final (in may orders decrees that and until (interlocutory) judgment entered, shall such there be and “that judgment a demand is not never such claim or decree and and subject Howard, against Morey deceased, of Minnie as is estate ' to classification allowance laws of Missouri.” and under the The writ quash alleges petition motion to that and show also said by adequate appeal; relator that the facts that can be relief afforded stated in said are not to entitle relator petition writ and sufficient that relator by mandamus; petition to relief that writ and show said claim; dismissing appealed his has from order and dismissing in and, effect, petition in writ that that the and show respondent of refusing claim and set aside capacity. judicial in acted his indicated, respondent motion
As we filed a combined have single heading a with the quash return. It is document “Mo alternative writ of mandamus.” First quash return to tion to Following motion, summarized. we have appears there his says waving quash motion the said “Without respondent cause, heretofore in this mandamus issued but writ of alternative thereon, for respondent answer insisting his and re expressly says:” Then return, writ follows alternative to said turn '836 long, petition
which is incorporated as is the for the writ in which is part and made of many the alternative writ. The return admits of pleaded by relator, facts and denies others. Relator, brief, in by his filing insists return quash waived his motion that said motion cannot now be con though argued even sidered, the return combined. were quash performs motion to such the same function as a demurrer ordinary demurrer, in and, civil action admits all well like necessary in pleaded facts. It is not techni this ease to determine the question pleading suggested. cal thus ex inf. Barker See State City ex rel. Kansas City Company, v. Kansas Mo. Gas 854, where, situation, S. W. in discussed. a similar the matter was by here Respondent was commanded alternative writ to do certain things why showing or show cause should not do them. cause he said in his return acts re (dismissing that he done certain claim, fully writ) which claim had been set in the lator’s forth motion,-thus in paragraphs by reasons certain stated of his reference making paragraphs part at least those his motion of his return. As v. K. Company, supra, was said State ex inf. C. 254 Mo. Gas 528, 163 practice grown up l. c. S. W. “The has this court raising questions by of law side with of fact in the side issues issues, fact, return in mandamus.” law herein, The both of sufficiently appear pleadings to the mo without recourse quash. allegations tion are While some the writ denied return, presented the case on Re to us uncontroverted facts. ‘‘ says pleadings, lator presented his brief: Other facts are they facts, but are controverted. None these controversial how necessary questions ever, presented are for the determination of the proceeding. in this they mandamus not be considered.” need necessary decision-being facts to a uncontroverted there is no *9 separate on-questions hearings need for fact. We of law and ordered quash with that the motion-to be taken and the case considered parties questions accordingly. have the briefed the involved legal in State ex K. situation, Company, In this inf. Gas was said v. C. W. 856, supra, 529, 163 opinion 254 Mo. l. c. S. “We are that we - case ques need not rule the on the one narrow technical instant quash a motion the writ live in tion whether to can the face of a (cid:127) - fact.” raising only issues of return -opinion case facts of this we are that On the uncontroverted not issue. We think' relator an peremptory writ should had our invoked, remedy by appeal, which he have aiid adequate should rulings complained their respondent’s acts and were in also that purely subject judicial rather ministerial and not than to nature ' by mandamus. control
837 may appeal Creditors distribution, orders of Section 284, Revised 1929 Statutes (Mo. Ann., p. 177), Stat. including or ders of distribution. Peper Bell, rel. ex v. 286 Mo. [State 126, 226 (styled S. W. 550 Peper Reynolds State al., ex rel. v. et Judges, in 226 S. W. It well 550).] that mandamus is settled cannot be perform used appeal to an office of or writ of error. In ex rel. Spring State Company River Electric Power Thurman, v. 232 130, 165, 1157, general Mo. 132 S. W. read: a “It is rule that a mandamus will asking not party issue unless the it a has clear right specific legal remedy. no other It granted will not to bring proceedings under review the of an inferior court on the ground error, it a therefore will be in which refused case lie, writ of error will by or can be party ap where redressed ” peal. effect, to like Sevier, State rel. Tate v. 334 Mo. ex [See, (2d) 68 S. W. In ex State rel. Thurman, supra, v. the relator 50.] by sought, compel mandamus, -respondent, to cir judge of the cuit cause, set aside dismissal of a which the circuit noncompliance had dismissed the relator’s with an order pay costs, certain reinstate the This that cause. court held adequate the relator remedy appeal had an error by or writ of peremptory also, denied writ. ex State rel. South St. Jo [See seph Judge, App. 540, Town Co. v. Mosman, Circuit Mo. Thurman, S. W. approval in ex cited with rel. v. supra.] State case, also, that circuit court had dismissed a cause and sought compel setting relator to. aside of or mandamus der appellate of dismissal reinstatement of cause. it en
held that was not had case where refused to that, tertain on he jurisdiction, contrary, but had assumed au thority dispose dismiss, and acted motion heard appeal it and a final from which had entered remedy could have been if prosecuted, and that he had erred the adequate. was appeal, which the court like effect [To Lamport Judge, see State 257 Mo. Robinson, ex rel. v. Circuit 591, 165 W. S. 997.] an ade argued appeal
In the case is instant is not remedy. quate bond, suggested the executor is under is require that, as dis court’s did not tributee, give by appeal refunding bond and that remedy etc., estate, where delay slow and entail settlement of would remedy by speedy be more and efficacious. mandamus would allegation pleadings intimation in that said dis is no or There re insolvent to be unable to likely so as tributee is to become *10 ultimately property return upon he to spond be called should go "We him. need not into distributed to now ordered to be 838 could, hereafter,
question of whether do-so or be called to assuming-that the court’s pursuant to distribution has made been obtain order. process by As an which-to appeal being-a slower inade- redress, that, appeal we itself, cannot of renders concede (cid:127) quate justifies error writ of or Appeal to mandamus. resort redress procedure provided by review of and law to obtain judicial from of the-next errors, which-brings'us "to consideration — question'. question, the nature and character the act of of re making* distribution
We think'that order of ministerial spondent performing judicial purely rather than of therein is Ordering function. estates administered of course, speaking, probate generally jurisdiction within doing of ad court. accounts In so court must 'examine be distributed ministrator executor determine the amount or ex In State paid each distributee. the amount to over to be 1078, Baltimore, Md., 317 Mo. Fidelity Deposit Co. of rel. Gott v. & made (on settlement), an probate final 83, the S. W. par “to the hands over the in his pay administrator balance said, 317 this Speaking that order ties entitled thereto.” c. 87: 1087, Mo. l. 298 S. W. l. c. ease, the order facts the direction in
“Under the of this en- parties his- hands to the pay over the balance in administrator mean- is, contends, indefinite and appellant either titled thereto judicial ingless, attempt with to invest administrator else proper distributees amount to determine the discretion their, (Citing authorities. In either it would void.” interests. case be ) ours the instant case. Latter italics may concerning be advancements questions distribution, ordering supra, advance case, determined, ex Gott State rel. litigated and adjusted and may to distributees made the deceased ments r - equalize the dis distributive shares so thei deducted Estate re among those entitled thereto. of the estate tribution [In App. Glover, 158 Mo. 739; Brown v. 11 S. Elliott, 98 Mo. W. distributee to legatee Or of a indebtedness S. W. 105.] share. against his distributive be ascertained and offset may the estate Lietman; George H. supra; Estate of case, In re rel. Gott ex [State 307, 73 Am. S. 112, 50 W. 149 Mo. Lietman, Winkler, Appellant, v. S. l. 11 W. c. 98 Mo. supra, case, Elliott Rep. In the St. 374.] d : 741, l. c. sai ' estab- courts were our by this heretofore “As purpose do- jurisdiction- powers with extensive lished n es- administration final full and necessary ing everything parties entitled to make distribution including power tates, the- ' thereto.”'
839 further, And l. c. 385, “.The.power to make the- distribution-includes power to take all necessary matters to be account.of considered in the ascertainment of the see, duty shares- And the to .. a probate court in ordering distribution, 24 Corpus Juris, page 519, section 83. 3 1
Orders of
made-by
probate
court.are so far-
of the
judgments
nature of
if
that,
appealed from,
not
becoine.
they
State,
rights
as to the
distributees,
final
of the
ex
Peper
Bell,
rel.
v.
supra (partial distribution, and
subject
are not
to collateral attack.
,
d
[Gorg
(Mo.
v.
(2d)
Rutherfor
App.) 31. S.
585;
W.
Harter v.
]
.
Petty, 266 Mo.
181 S. W.
296,
39
In
ex
Thompson
State
rel.
v. Nortoni, 269
Mo.
191
S. W.
probate
court had refused letters of administration
to
widow
edeceased,
th
ground
on. the
-right
that she-had waived her
to
antenuptial
administer
contract
into
-entered
with
de
administer,
ceased. But for
antenuptial
right
such
contract her
.to
brought
was clear. She
mandamus proceedings in the St. Louis Court
Appeals
compel
probate
to
judge
appointment
to
his
revoke
public
administrator
appoint
and to
her as administratrix.
granted
the writ, directing
Said
probate, judge
to vacate
his order appointing
public
appoint
administrator and to
her. The
case was certified to this
quashed-
record
Appeals,
Court of
holding
question
that the'
of whether or .not the
widow
contract or otherwise
right
marital
had waived her
to ad
judicial question
minister
pro
was a
for the determination of the
bate court,
it
judgment
up
and “When
acted its
for review
not
completed-
subjects
on mandamus.
Judicial acts,
here,
are
proceedings.”
of mandamus
renuncia
also, question
claimed
[See
right
tion of
administer,
Holtcamp,
to
State
rel.
ex
Abercrombie v.
Mo.
267
Other be but we think sufficiently making pro illustrate that in orders of distribution judicial,- bate court acts in purely ca rather than a ministerial pacity. It seems to us that whether a certain act ministerial judicial depends upon the nature character of the act itself -and things necessarily upnn involved therein rather what than applicant may claim for act. v. Thorn ex rel. Heller [State hill, App. 469, 472, 174 Mo. that, S. W. is well settled 558.] may compelled by act, while an inferior be mandamus tribunal to exercised, cannot, are be thus where and discretion to be. way. particular compelled In instant to act case act. He did act. He authority did not exercised his refuse ‘ jurisdiction partial making distribution. to order .the legal that relator’s claim he determined was not a of distribution demand probate jurisdiction which the entertain, had allow classify, appeared ample there fund's in estate legal all pay demands distribu and warrant the order of tion, ex Thompson supra, State rel. Nortoni, v. —as judicially her-antenuptial court had widow, by that the determined contract, (otherwise statutory), right her waived to administer. *12 If he erred man remedy by .appeal, in so relator’s was not deciding, . jurisdiction damus. wide of There is a between an absence difference to a decide case a of and mistake law and facts made in the decision - jurisdiction. of a of ease which the has v. court lawful [Harter Petty, supra. see, also, ; Sevier, supra And State rel. Tate v. ex Mosman, rel. Sevier, State ex ex v. In State rel. Tate v. supra.] supra, the to al respondent, judge, as circuit had refused issue Secretary ternative of to commanding writ' the of State "mandamus petition why and should receive file a referendum he or show .cause respondent not so. The the alternative on the do had writ denied ground legislative sought not that to be referred was- the enactment subject to sought to was the referendum. writ of mandamus Our compel refusing writ, him -the set- aside his order the reinstate to- to Secretary on his to the cause docket to issue alternative writ writ, prayed by petitioner. peremptory of ás denied State We ease, saying, concluding the discussion of circuit holding in the petition are not whether filed “We writ alternative not a issuance of an or did state cause did ju had of mandamus. hold circuit court What do is which question, the deterihination of to risdiction determine Where, judicial cannot be mandamus. controlled a act jurisdiction subject-matter of- the court has here, circuit decision, go compel particular will not to parties, of mandamus ju lawful judicial in the or review .exercise to decision made ” lies in other remedy, any, if risdiction. directions. Petitioner’s question prejudge to" In instant case we do-not wish dismissing wrong in relator’s-claim respondent right whether was another appeal in pending on probate question now —a capacity in a clearly acting judicial doing that he was court. jurisdiction in capacity his he such within we think acted set refusing to complainéd of and making the order of -distribution . i d e it as - his and -abused capriciously argued It acted ordering matter of discretion, gave in that he no consideration executor, petition upon made distribution but knowing even investigation without without consideration or There order. making such the time of petition át the contents of said ineorpo-? petition for mandamus that effect in the allegations are in the return they are denied but writ, in the alternative rated . proved not are argued is also the order of was .that made without notice to relator. 242, Section Statutes 1929 Revised (Mo. p. 160), Ann., requires Stat. distributees, apply notice to ing therefor, before an order (except of distribution at may be made settlement), the first semi-annual settlement.or the final find but we statutory requirement no such do not notice creditors. We r give believe the failure making relato notice the order before deprived jurisdiction of distribution it, court of. to make making and relator knew day of the order on on same though which it made, a few later in the He day. hours ample opportunity appeal. time and Indeed knew the order perfected made appeal distribution had been when he his from the dismissal of his claim. Co.,
In State Bridge ex rel. 206 Mo. Crow v. Booneville S. said, quoting Extraordinary W. High this on Legal (3 Ed.), section 9: Remedies ‘1 being high The writ justly regarded of mandamus as one of the system est jurisprudence, writs known to our only issues where *13 right, there is specific enforced, duty a clear be which or ought spe be performed, and can be and where there is other no adequate legal remedy. fight cific and sought The is which established, protect clearly must therefore be writ never ' granted . . . It also, in doubtful cases. follows from the im portant position occupies process, which this as writ a remedial remedy, extraordinary well as from its nature as an the exer jurisdiction rests, extent, cise of the tó considerable sound court, subject always principles to the discretion well-settled courts, by legislative have been established fixed . . enactment. that the alternative writ issued is our herein should conclusion prayed writ for peremptory denied. It is quashed and so or Bobling, CC., concur.
dered. Westhues opinion foregoing adopted PER CURIAM: Cooley, C., judges All concur. opinion court. 149. (2d)W. Ralph S. Pierson, Appellant The State v. . 123 Two, 1938.* December Division 1938; 1938, August motion Term, May at Opinion *NOTE: filed Term, September De- at Banc filed rehearing en transfer to Court ' cember 1938.