266 Mo. 347 | Mo. | 1915
Lead Opinion
This cause enters our portals as no stranger. Our acquaintance covers a period of years and extends to all of its ramifications. It has been here twice on appeal and several times on applications for original writs. It seems to possess one quality of Banquo’s ghost. It came here first upon a demurrer to the petition, involving principally a question of limitation and the character of the instrument sued upon. [Knisely v. Leathe, 256 Mo. 341.] The cause was reversed and remanded to be retried in accordance with the views there expressed. Upon retrial a verdict for the defendant was returned and plaintiff again appealed. On that appeal (Knisely v. Leathe, 178 S. W. 453) this court reversed the judgment nisi and directed a judgment- for plaintiff in the sum of $107,500, with interest thereon at the rate of six per cent per annum from May 17, 1902, said interest being required to be calculated upon the day the circuit court entered the judgment, and be then added to the principal and made a part and parcel of such judgment. In compliance with this order, and on July 2, 1915, tlie circuit court entered judgment in favor of relator for the aggregate amount of $192,263.75, and this, in compliance with this court’s direction, was certified to the probate court for classification, same being filed and presented in open court on the 14th day of July, 1915. There was also - attached to the certified copy of judgment and filed an affidavit of relator stating- that she had given credit to the estate involved for all payments and off-sets to which it was entitled, and that the balance claimed on the annexed judgment
“Now at .this day, the matter of the application of Elizabeth O. Knisely, administratrix of the. estate of Charles H. Knisely, deceased, asking for the classification of a certain judgment for $192,263.75 in her favor as said administratrix, and against Grace A. Leathe, executrix of the estate of Samuel H. Leathe, deceased, as a debt and claim against the estate of Samuel LL 'Leathe, deceased, coming on to be heard, and said Elizabeth C. Knisely, administratrix, presenting in court thereof certified copy of said judgment of the circuit court in the city of St. Louis, Missouri, and a certified copy of the mandate of the Supreme Court of • Missouri, directing the entry of said judgment for said above-mentioned sum in favor of said Elizabeth C. Knisely, administratrix, and also offering in support thereof the files of the circuit court of the city of St. Louis, showing that the said suit of Elizabeth C. Knisely, administratrix of the estate of Charles LI. Knisely, deceased, against Grace A. Leathe, executrix of the estate of Samuel LI. Leathe, deceased, was begun on August 1, 1907, and service of process had on Grace A. Leathe, executrix, on September 7, 1907, and the subsequent dismissal of said suit in the absence of counsel for plaintiff therein, and the institution of another suit by said- Elizabeth C. Knisely, administratrix, against Grace A. Leathe, executrix of the estate of Samuel H. Leathe, -deceased, and which said files last mentioned of said circuit court also show said cause was disposed of by demurrer and motion to strike out plaintiff’s petition in the'said circuit court in St. Louis,v Missouri, resulting in judgment for de*357 fendant, followed by appeal to tbe Supreme Court and reversal by the Supreme Court, and a subsequent trial before a jury in the circuit court of St. Louis, Missouri, resulting in judgment for defendant, followed by appeal to the Supreme Court, where judgment of the circuit court was reversed and the cause remanded with directions to circuit court of city of St. Louis, Missouri, to enter judgment for the plaintiff for the sum of $107,500, together with interest at six per cent thereon from the 17th day of May, 1902, to the date of the entry of the judgment of circuit court, and said Elizabeth C. Knisely, administratrix, also offered in evidence of the support of said claim the record entries throughout all of the above proceedings in the circuit court of the city of St. Louis, Missouri, as the same appear spread upon the record of the circuit court of said city, and Grace A. Leathe, appearing as distributee, by her counsel, objected to the court entertaining the application for the classification of the said judgment for the reason that on July 7, 1909, as shown by the records of the probate court of the city of St. Louis, Missouri, final settlement of the estate of Samuel H. Leathe, deceased, was made and the executrix, Grace A. Leathe, was discharged, and therefore the probate court of the city of St. Louis had and has no jurisdiction whatever over said estate and no jurisdiction to classify the said judgment and claim, and the court having duly considered said objection, does sustain the same and refuses to entertain the application for the classification, and refuses to act in the matter because of no jurisdiction in the probate court on account of the said final settlement of the estate of Samuel H. Leathe having been heretofore made on the 7th day of July, 1909.”
This immediate mandamus proceeding is to compel the probate court to classify the demand in accordance with the judgment and directions of this and the circuit court.
Section 34, article 6, of the Constitution provides for the establishment of probate courts and defines the bounds of their jurisdiction.
The doctrine announced by Philips, P. J., in Richardson v. Palmer, 24 Mo. App. 480, that section 34, supra, did not vest in the probate court exclusive, but merely concurrent jurisdiction, with other courts of record, to entertain suits against administrators for the establishment of demands against estates, has been uniformly approved and acted upon in this State [State ex rel. Ziegenliein v. Tittmann, 103 Mo. l. c. 566-7; Wernse v. McPike, 100 Mo. l. c. 486; Matson & May v. Pearson, 121 Mo. App. l. c. 134; Stephens v. Bernays, 119 Mo. l. c. 147; Knisely v. Leathe, 256 Mo. 341.]
Section 197, Revised Statutes 1909, valid by virtue of section 22, supra, of the Constitution, in terms certain, authorizes the establishment of such demands in circuit courts. Relator was, therefore, properly within her rights and proceeding in an orderly and legitimate way when she instituted suit in the circuit court to establish her demand against the 'Leathe estate, then in the process of administration. There is also no doubt that the suit was begun and summons served within one year after the granting of the first letters of administration, and that service was properly had on the person then duly authorized and acting as executrix of the estate. It has heretofore' been adjudged by this court (Knisely v. Leathe, 256 Mo. 341), and is so written in the statute (Sec. 193, R. S. 1909), that
What was the purpose of this suit, and the extent and effect of the jurisdiction thus acquired! The purpose of the suit was to finally establish the liability of the estate and relator’s right to have it satisfied by the estate and while the estate was a legally existing thing, and the jurisdiction of the circuit was co-extensive with this purpose and right. The estate of a deceased person is a distinct legal entity, and the statute prescribes that it shall remain in existence as such until its demise comes orderly, peacefully and as the law ordains. No mystery surrounds its creation, existence, departure or future. We know whence (and why) it cometh, and whither (and when) it goeth. It comes primarily for the purpose of paying the debts of its former master and to remain until that is done, and when this mission is performed and these labors put to an end, it is ready for dissolution and the law’s decree as to the distribution of its dismembered parts. The estate and its legal representative being in the circuit court and within that court’s lawful jurisdiction for the express purpose of having determined one of the very things upon which its right to exist or cease to exist depended, namely: whether it was in debt, by what means could it tear itself from that jurisdiction
With this in mind, we turn to section 197, Revised Statutes 1909, which authorized the filing of this suit and the establishment of this demand in the circuit court, but search as we have, we fail to find anywhere a provision that after the suit is filed the' same shall abate or the jurisdiction of the circuit court divest whenever it shall appear to the probate judge that all debts have been allowed, or the estate has been fully administered, or the probate court has made such an order. Have we authority to write into this section this important and far-reaching provision? We refer those to whom the answer is not self-evident to such cases as Orthwein v. Germania Life Ins. Co., 261 Mo. 650; and Stephens v. Gordon, ante, p. 207. What would have been the position and probable order of the circuit court, or of this court, depending upon where the cause was pending, had the probate court notified either that, notwithstanding such superior courts had jurisdiction, of both the person and the subject-matter, it had determined all matters pertaining to the estate, including that involved in the suit, and had decided that the estate was fully administered and that such superior courts could not further lawfully proceed?
We have'also examined section 196, Revised Statutes 1909, which requires executors to keep a list of all demands exhibited and make return thereof to the probate court; as well as section 193, which makes service of process in a suit a legal exhibition of the claim,
In Smiley v. Cockrell, 92 Mo. l. c. 112, Sherwood, J., speaking, said: “I do not believe that, in any event, the jurisdiction of the circuit court having once attached could be divested by any subsequent action of the probate court, pending litigation in the former court. [Seibel v. Simeon, 62 Mo. 255.]” In Nolan v. Johns, 108 Mo. l. c. 437,Macearlane, J.,.said: “It has been held by this court, and justly, too, that an administrator cannot defeat the jurisdiction of the circuit court when once acquired, by making final settlement of the estate and obtaining an order of discharge as such administrator from the probate court. The ends of justice could not be thus defeated. For the same reason no action by the administrator, or order of the probate court removing Mm from his trust, or accepting his resignation, could deprive the circuit court of its jurisdiction to proceed to the determination of the matter before it.” In In re Hutton’s Estate, 92 Mo. App. l. c. 139, Smith, P. J., speaking for the court, said: “The jurisdiction of the circuit court having once attached, would not be divested by any subsequent action of the probate court pending the litigation in
Looking at and analyzing respondent’s return and briefs, we find' the contention that both the estate as an entity and its executrix as a legal representative were extinguished and withdrawn from the jurisdiction of the circuit and this court by reason and means' of the action of the probate court in declaring the estate fully administered and finally settled, and that this action and these results are authorized and made lawful by section 239, Revised Statutes 1909. This section provides that “if it appear to the court [probate] that such notice was duly published [notice of final settlement], and that the estate of the deceased has been fully administered, the court shall make final settlement.” This section expressly names but two conditions which must appear to the court before it is warranted in making the settlement: (1) That notice
Let us look now to the conditions prevailing when the alleged final settlement was made. A suit on demand, which subsequently ripened into judgment, was pending, by reason of another statute, in a court of competent jurisdiction against the estate. The legal representative of the estate was present and actively defending the estate against the suit. The subject of litigation, that is, the liability of the estate thereon, and the estate itself for this purpose, were in the exclusive jurisdiction of that court, the probate court not having even attempted to entertain jurisdiction thereof. There were then available assets belonging to the estate with which to satisfy the judgment, either in whole or part, if any were rendered, and these assets, under the law, were held in trust for this purpose. Until the estate’s liability on this demand was determined the estate was not fully administered. [In re Hutton’s Estate, 92 Mo. App. l. c. 139; Ryans v. Boogher, 169 Mo. 673; Smiley v. Cockrell, 92 Mo. l. c. 111.] The probate court had no jurisdiction to determine this liability (Ryans v. Boogher, 169 Mo. l. c. 685), or whether the claim should or should not be allowed and
Our law provides a complete plan and scheme for the administration and final settlement of estates. It requires that demands be exhibited within a specified time, or be forever barred, and that during the time so allowed the estate shall be preserved and held in trust for the satisfaction of such lawful demands. It provides that after demands are exhibited they shall be legally established and prescribes the procedure by which and the forums in which this shall be done, and how and when they shall be paid. It places all claims of the same class on the same basis and contemplates that all questions of liability will be determined and all discharged before legatees or devisees shall participate. Recognizing the uncertainties and delays frequently attendant upon such matters, it fixes no definite time when the estate shall be finally settled,- but names a condition which determines this, that being, when fully administered; and that condition is of such a nature as to enable the law to fully carry out its purpose. Further recognizing, however, that after an estate has fulfilled its chief function, that is, submitted itself to the payment of lawful debts, the remainder should go to those entitled thereto, it provides for a final settlement. Such a settlement, when lawfully made, destroys the estate as an entity and removes all powers of its lawful representative. Its substance is distributed and its demise becomes complete. If the settlement by respondent in 1'909 was laivful and final it had this effect on the jurisdiction of the circuit and this court. Absent grounds of estoppel, etc., it effectively removed from that jurisdiction the person of the legal representative of the estate, because her representative capacity was then and thereby terminated.
Adopting respondent’s view that under our system of laws there is no such thing as an administrator
It - is our opinion that the determination of relator’s demand was a part of the administration of the estate, and this being lawfully in the exclusive jurisdiction of the circuit and this court, the probate court did not have the necessary jurisdiction to pass upon the question of whether the estate was fully administered, and by reason thereof its settlement of July 7, 1909, purporting to be a final settlement, had only the effect of an annual settlement, and beyond this was~absolutely void. Our conclusion in this respect seems to be in perfect harmony with the course and conduct of
In Smiley v. Cockrell, supra, (1. c. 112), this court made the following observation in this relation: “And in this connection, it is not to be forgotten that these same executors appeared in this court in 1883, and took part in the appeal, although they now claim that they had made their final settlement and were discharged in 1881. Such subterfuges are not to be tolerated in a court of justice.” We shall impute ho bad faith to the parties who have thus acted, but shall content ourselves with the belief that their views on the law were in accord with ours.
Relator has also presented various authorities from other jurisdictions seemingly holding in accord with the above cases, and further holding that until the estate is fully administered a final settlement cannot be lawfully made and is void for lack of jurisdiction. Most of these cases were decided upon statutes not altogether like ours, but similar in many important
As tending to support the doctrine that jurisdiction to approve final .settlement does not depend upon the fact that the estate is fully settled, respondent cites certain Missouri cases, which we shall review.
In Ratliff v. Magee, 165 Mo. 461, it was merely held that a claimant who during the former administration had submitted himself to the jurisdiction of the probate court, and had his demand classified and paid only in part, because of insufficient assets, must proceed in accordance with the statute on madministered assets and allowed claims, when he relies upon the discovery of new and unadministered assets. There was then, as now, an express statute on that particular subject prescribing the procedure which should be followed in such cases.
McLean v. Bergner, 80 Mo. 414, was a suit to vacate and annul a final settlement, made ten years prior thereto, and was filed and tried upon the theory of lack of notice and fraud in procuring settlement.
Robards v. Lamb, 89 Mo. 303, deals merely with an administrator pendmte lite, and does not involve any question of the settlement of estates.
Smith v. Hauger, 150 Mo. 437, was decided upon questions of fact, estoppel and insufficient summons.
Clyce v. Anderson, 49 Mo. 37, was a direct action to set aside a final settlement for fraud, and conceded the validity of the settlement, unless fraud in procuring same was established.
Michie v. Grainger, 149 Mo. App. 301, is a case decided by the Springfield Court of Appeals, and holds
In all of these cases the general doctrine is announced that where a final settlement is made, in accordance with the law then in force, it has the forbe and effect of a final judgment. Aside from this general pronouncement, the correctness of whieh all concede, these cases, unless it be the Court of Appeals decision, supra, contain nothing bearing upon the question here presented.
In view of the purpose and effect of our laws on administration, the provisions they do and do not contain, and of our former adjudications, we are of the opinion that a probate court is without the jurisdictional power to approve a final settlement as long as in fact demands are legally pending and 'undisposed of in either the probate court or other courts of record, and there are available assets for their satisfaction. This doctrine is in keeping with justice and orderly procedure, and less capable of abuse than the contrary. The legal representative of an estate and the probate courts are provided with' every means and facility necessary to readily ascertain whether demands which have been made of record are undisposed of and an estate has been fully administered, and their failure to use these and do their duty should not be made a lawful means of defeating just and lawful demands, or the very ends for whose accomplishment they are created and maintained. We cannot bring ourselves to the conviction, that regardless of the number of legally established demands there may be against an estate, demands of whose existence the officers know, or should know, a settlement which ignores
“Nor will mandamus usually issue where there are other adequate remedies, but in the light of this rule the other remedies or remedy must be' fully adequate. The mere fact that there might be another remedy is not sufficient to preclude the use of the writ of mandamus. The other remedy must be adequate, and whether it is adequate is one appealing to the judgment and discretion of this court when the circumstances of each case are laid before us. . . . The circuit court had in a way determined its jurisdiction over the defendants in the circuit court case, but its determination was upon admitted and undisputed record facts. "Whether that court had jurisdiction of the defendants thus became a pure question of law.1 It may be that an appeal or some such remedy was at hand, but was that remedy adequate? Under the facts we could have well said that it was not.
“But aside from this there is much respectable authority to the effect that mandamus is the only proper remedy where a circuit court refuses to proceed with a case, because the court was of opinion that it did not have jurisdiction of the cause, or of the parties to the cause. In the circuit court case the trial court refused to entertain jurisdiction and proceed with the case upon a preliminary objection to the return of service to the process. In the very early case of Castello v. St. Louis Circuit Court, 28 Mo. l. c. 274, we had up a very similar question. The question there was whether a notice of contest in a contested election case was sufficient to give the circuit court jurisdiction to hear and determine the case upon its merits. The circuit court held the notice insufficient and refused to proceed further with the case. This court issued its alternative writ and then proceeded to determine whether or not the trial court was right or wrong in*374 refusing to proceed .further. ' We held that the trial court was right and that the notice was insufficient, and denied the peremptory writ for that reason, but in the course of the opinion we thus spoke upon the question in issue here:
. “ ‘Upon-the facts disclosed in the.petition in this case for a mandamus upon the circuit court, a majority of this court determined that a conditional mandamus should be awarded, and it was accordingly so ordered. This determination was based upon the principle that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. The cases of the King v. The Justices of the West Riding of Yorkshire, 5 Barn. & Adol. 667, and Rex v. The Justices of Middlesex, 5 B. & Ad. 1113, The King v. Hewes, 3 Ad. & Ellis, 725, and Regina v. The Recorder of Liverpool, 1 Eng. Law & Eq. R. 291, are believed to be conclusive upon this point so far as the English authorities go; and our attention had not been directed to any American cases conflicting with this view of the law. If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by the statute, that was a preliminary objection upon a point of law which this court can review upon a writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.
“ ‘It is not deemed important to go into any examination of this question, since upon the return to the conditional mandamus by the circuit court, we were satisfied that the construction which that court gave to the statute was correct. ’
“So in the case at bar. The trial court entertained an objection to a preliminary matter and then*375 refused to proceed further. The return was before the court and.was therefore an undisputed fact, and it was thus a pure question of law as to whether the court should hear the case upon its merits. The doctrine of the Castello case, supra, has since met with the express approval of this court in the later case of State ex rel. Bayha v. Philips, 97 Mo. l. c. 347. This latter case was a mandamus against the Kansas City Court of Appeals. Over the protest of Bayha that court had dismissed a case appealed by Bayha for the reason that it was made to appear to the court by motion of the respondents that the tax bills which Bayha sought to have cancelled by his bill had in fact been cancelled. In the case Sherwood, J., discusses at length the powers of this court by mandamus against inferior courts and in closing, thus speaks:
“ ‘But as already shown, the Constitution has conferred on this court more enlarged powers, and consequently the rulings on the point in courts of others jurisdictions, not possessed of such ample powers, can have no application here. And whatever the rulings of other courts may have been in respect to the issuance of writs of mandamus, the rulings of this court, heretofore made, establish that this court will award its writs of mandamus: Where the St. Louis Court of Appeals refused to take a bond for an appeal to this court on the ground that the appeal having been granted, that court had no further jurisdiction of the cause. [State ex rel. v. Lewis, 71 Mo. 170.] Where a circuit court refused to enter judgment on a verdict, but granted a new trial. [State ex rel. v. Adams, 76 Mo. 605.] When a trial court ordered a cause to be “dropped from the docket.” [State ex rel. v. Cape Girardeau Court of Common Pleas^ 73 Mo. 560.] Where a trial court determined it had no jurisdiction of a criminal cause, by reason of the unconstitutionality of a statute and ordered the cause transferred to*376 another court. [State ex rel. v. Laughlin, 75 Mo. 358.] To compel the judge of a trial court to enter a judgment on a verdict, which he had refused to receive, because the jury by that verdict found for the defendants, but required, them to pay the costs. [State ex rel. v. Knight, 46 Mo. 83.] In Castello v. Circuit Court, 28 Mo. 259, it is said: “If the circuit court declined to go into the merits of the cause because the party complaining has not given the notice required by the statute, that was a preliminary objection upon a point of law which this court can review upon a writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus oug’ht to be made peremptory. ”[ See also, Miller v. Richardson, 1 Mo. 310.] ’
“And in this same case at page 343 we thus cite with approval the case of Ex -parte Schollenberger, 96 U. S. 369:
“ ‘In Ex parte Schollenberger, 96 U. S. 369, the circuit court, in which the suit was brought, because of opinion it had no jurisdiction, quashed ‘ the process, and it was held that mandamus would lie to compel it to reinstate and hear the cause, as it had jurisdiction, though it had erroneously decided to the contrary.’ The California Court of Appeals has likewise quoted from and approved the Castello case in the case of Hill v. Superior Court, 114.Pac. l. c. 808 et seq. In the Hill case, the lower court had quashed a citation in an election contest case and thereby refused to hear the contest. In the course of that opinion it is said:
“ ‘At the time and place appointed for the holding of said special session the court quashed the service of said citation, and refused to hear the contest of petitioner, for the reason that the notice to the court by the clerk was given and the order of the court fixing. the special session was made prematurely, and the citation was issued prior to the time fixed by the stat*377 ute. Upon application to this court, an alternative writ of mandate was issued, and it is now sought to have it made peremptory upon an answer admitting all the facts set out in the petition. While, technically speaking, the order of the court below simply directed the citation to be quashed, it amounted to a refusal to proceed with the trial of the contest on the ground that' the court had no jurisdiction of the person of the eontestee by reason of the premature order and service as aforesaid. . . .
“ ‘As we view it, then, the trial judge, upon a preliminary matter, decided contrary to the law and the facts, that the court had not acquired jurisdiction of the “contestee,” and therefore was not authorized to proceed with the trial at the time appointed. Upon our understanding of the statutory provision, the court had and still has jurisdiction of the subject-matter and of the parties, and it was its plain duty to proceed to trial at the time appointed. It could not divest itself of this jurisdiction by an order purporting to quash the citation, nor is there a case presented here of jurisdiction to decide wrong as well as right beyond the reach of the writ of-mandate. Where there is no conflict as to the facts and in the judgment of the higher tribunal those facts confer jurisdiction and make it clearly the duty of the lower tribunal to proceed with the trial of the cause, if there is no other adequate remedy, the writ of mandate will issue commanding such action. . . .
“ ‘The authorities are in line with these reflections.’ The California court likewise quotes with approval what this court said in the Bayha case, 97 Mo., supra, concerning the Sehollenberger case, 96 U. S. 369. it will be noticed that the California court lays some stress upon there being no conflict of facts in matters touching the jurisdiction or right to proceed. In the case at bar the facts stand admitted and undis*378 puted. They are in fact bound up as a part of the judgment roll. This court, like the California court, has made some observations as to the admitted facts concerning jurisdiction, and in what cases the extraordinary writ will issue. Thus in State ex rel. Crouse v. Mills, 231 Mo. l. c. 500, we said:
“ ‘Where the jurisdiction of the probate court is dependent upon the fact of the person being within the territorial jurisdiction of the court, a writ of prohibition will not lie to prevent the probate court from investigating the necessary facts to determine its own jurisdiction, nor could prohibition be granted to prevent an entry of the court’s judgment, whether that judgment be right or wrong, as to the jurisdiction over the person. In other words, if the law determines the right of a court to entertain or not entertain jurisdiction of a case, then prohibition will lie, but if jurisdiction is contingent upon facts, unless such facts be admitted and not disputed, the lower court has the right to determine its jurisdiction from the facts before it.’
“The latter clause of the quotation is the more applicable portion. But in the case at bar the actual return was admitted and not denied. It was a part of the files of the case the circuit court was then dealing with and the circuit court was simply determining whether it would proceed or not proceed upon an admitted fact. Other courts have followed the same trend of thought, thus:
“The Supreme Court of the United States, In re Hohorst, 150 U. S. 663, issued a mandamus, directing the United States Circuit Court of the Southern Distinct of New York to take jurisdiction of and proceed with the trial of a case, in which the circuit court had set aside and quashed the service and dismissed the suit, saying: ‘The Hamburg-American Packing Company being liable to this suit in the Circuit Court of the United States for the Southern District of New*379 York if duly served with, process in the district, and having been so served, and the order of that court dismissing the suit as against the corporation not being reviewable on appeal at this stage of the case, there can be no doubt that mandamus lies to compel the circuit court to take jurisdiction of the suit as against the corporation.’
“The Supreme Court of Alabama, on January 20, 1910, in Ex parte Hill, 51 So. 786 (Syl. 4), held: ‘ Where the court malíes an order quashing the service of process on an unincorporated association, which order is erroneous and works an injury to the plaintiff in the action against the association, and no appeal lies from the order, and no other remedy exists, mandamus will issue to the judge, commanding him to vacate the order.’
“The Supreme Court of Florida, in State ex rel. v. Wills, Judge, 38 So. l. c. 291, said: ‘Another contention for the respondent is that the issuance of a writ of mandamus in this cause would be a review of his judicial discretion, which can properly be done only by appropriate appellate proceedings, the respondent claiming that he had assumed jurisdiction of the cause by entertaining and granting the motion to dismiss the appeal, thus determining a question of practice only. It is conceded that the appeal was dismissed because no writ of error had been issued in the cause, and that the court held that the issuance of a writ of error was necessary to give the court jurisdiction of the appeal. A dismissal on the ground of the want of jurisdiction is not such an assumption of jurisdiction as to require its review by appellate proceedings.’
‘ ‘ The question was directly decided in Hill v. Morgan, 76 Pac. 323. The trial court, in that case, held that the summons was insufficient to give it jurisdiction to hear the cause, and set aside the service of the*380 summons. It was held (Syl. 1-2): ‘The rule that mandamus will not issue to control discretion or revise judicial action has no application to the determination of preliminary questions relating to the sufficiency of the service of summons. When the tribunal or officer whose duty it is to take jurisdiction of a matter, and believing erroneously that it has no jurisdiction, declines to consider the matter, mandamus will issue to compel action.’
“In People ex rel. v. Judge of Wayne Circuit Court, 22 Mich. 493, it is held: ‘Where suit is commenced by declaration against the maker and indorsers of a promissory note in the circuit court for the county where the indorsers reside,, the service is first duly had in said county upon the defendants residing herein, and thereupon, by virtue of Act No. 54 of 1869 (Sess. Laws 1869, p. 101), service is made upon the maker, who resides in another county, by the sheriff of the county where maker resides, and the circuit court on motion, orders such service, as to said maker, to be set aside as unauthorized by said statute, mandamus will be granted to compel said court to vacate said order.’
“Returning now for some analogous cases in Missouri. In State ex rel. v. O’Bryan, 102 Mo. 254, we have a case where a cause was sent by change of venue from the Cape Girardeau Court of Common Pleas to the circuit court of Scott county. The latter court held that the cause had been improperly sent to-it and ordered it stricken from the docket and the papers returned to the common pleas court. The common pleas court, holding that it had lost jurisdiction, ordered the papers returned to the circuit court of Scott county. That court then dismissed the cause. This court was then applied to for a writ of mandamus and one was awarded. In that case (l. c. 259), we said:
*381 “ ‘It had been urged that inasmuch as the Scott Circuit Court had made its final order remanding the cause to the common pleas court, and inasmuch as the latter court, after this was done, simply made its order directing the return of the papers to the Scott Circuit Court, that therefore the latter court is not vested with jurisdiction to try the cause, etc. To this objection it may be answered that the order made by the Scott Circuit Court as aforesaid was coram non judice. That court had no more authority under the law and the facts to make such an order than it would have had to have sent the cause to the circuit court of Mississippi county. Such orders are nullities and consequently oppose no barrier to a correct method of procedure when the error committed is ascertained. [State v. Gabriel, 88 Mo. 631.] Nor is it any obstacle to the obtaining of the proper relief here, because the lower court has acted. [Bayha’s Case, 97 Mo. 331, and cases cited.]
“ ‘Nor would an appeal or writ of error afford any substantial or effectual remedy in a case of this sort. Were an appeal taken in an instance like the present, there would be nothing to pass upon, no errors to correct; for no trial had occurred. It is not the intention of the law to permit a cause to be bandied about like a shuttle-cock from court to court without affording a more effective and prompt relief than would be afforded by an appeal or writ of error.
“ ‘The premises considered, we do not doubt that this is an appropriate occasion for the exercise of our supervisory control and mandatory authority and consequently we issue our peremptory writ. All concur. ’
“And in a separate opinion Barclay, J., further said:
“ ‘Under the statutes governing this case, fully set forth in the foregoing opinion, it appears to me that the learned judge of the Scott County Circuit*382 Court was in error in refusing to take jurisdiction of the cause referred to. "While the plaintiff therein might properly have resorted to a writ of error or an appeal to rectify that ruling, it seems to me he was not necessarily bound to do so.
“ ‘Under the Constitution of this State, giving the Supreme Court “a general superintending control” over the trial courts (Const. 1875, art. 6, sec. 3), it is within the proper scope of the constitutional authority of this court to intervene by the writ of mandamus to reinstate a cause which has been erroneously stricken from the docket at the circuit, and in which a hearing there is absolutely denied. In such a case we think the party injured should not be put to the delay of an appeal.’
“So, too, we have by mandamus compelled the Courts of Appeals to reinstate and hear cases, after such courts had dismissed the appeals therein. [State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Broaddus, 210 Mo. 1; State ex rel. v. Broaddus, 234 Mo. 331; State ex rel. v. Broaddus, 239 Mo. 359.] In all these cases the Courts of Appeals had passed upon preliminary matters and disposed of the appeals without going into the merits. This court of necessity had and did examine into the same preliminary questions and holding opposite views upon the said preliminary questions directed the Court of Appeals to undo what it had done, and proceed to do what it should have done, i. e., decide the merits of the case.
“That an appeal in the case at bar and under consideration was not a full and adequate remedy is sustained by the following cases: State ex rel. v. O’Bryan, 102 Mo. 254; Sedgwick Furniture Co. v. Craig, 160 Mo. App. 91; French v. Bennett, 72 S. E. 746; Mining Co. v. Fremont, 7 Cal. 130; People’s Bank v. Burdett, 71 S. E. 399; 26 Cyc. 171.”
Concurrence Opinion
(concurring) — I concur in the learned
opinion of our Brother Revellb for the following reasons :
The probate court had no legal right to close the administration pending a timely suit in the circuit court to establish a demand against the estate, for until that suit should be finally determined the estate could not be fully administered, and that court is only permitted to adjudge a final settlement after a full administration. [Sec. 239, R. S. 1909.]
When the certified copy of the judgment of the Supreme Court was presented to the probate court, the latter court was advised of á conclusively adjudged fact (a large indebtedness against the estate), which, if it had known at the time, would have prevented this judgment discharging executrix, and was further advised that the plaintiff in the judgment exhibited was entitled under the statute to have it filed as an established demand against the estate. Hence it was the plain duty of the probate judge, upon the exhibition to him of the final judgment of this- court, to have ordered the proper classification of the said judgment as a demand against the estate of Samuel Leathe, and to have set aside and for naught held the entry on the records of the probate court of July 7, 1909, purporting to show a final settlement of said estate and the discharge of the executrix.
Hence there was no necessity for the adoption by the plaintiff in that judgment of other modes of redress which might be applicable, except for the conclusive effect and the controlling force of the final decision and judgment of this court.