Keele v. Keele

94 S.W. 775, 118 Mo. App. 262, 1906 Mo. App. LEXIS 304

• Court: Missouri Court of Appeals
• Decided: April 24, 1906
• Status: Published

Opinion

GOODE, J.

(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. The findings of fact contained in the judgment entered on the present motion, state that the administrator declined to allow Keele’s attorney to act as attorney for the administrator at the hearing of the demand and that “the circuit court declined to allow said attorney, J. P. Ball,, to appear and defend for said Isaac Keele.” Judge Ball stated in his testimony that “the court ruled they were not entitled to be in court in that proceeding.” Though no entry of record is before us showing a formal application by Keele to be made a party to the proceeding, or an adverse ruling on his application, it is certain that he appeared and asked the right to be heard and that the court denied his application in such a way that, whether what occurred was entered of record or not, a bill of exceptions to preserve the proceedings might have been taken and filed. This being true, was it incumbent on Keele to appeal from the order of the circuit court in that proceeding, bringing up by the appeal the denial of his application? The motion to vacate was founded on the following section of the administration statutes.

“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 intended to allow a party interested in an estate who appears and contests the allowance of a demand, to move afterwards to vacate the allowance on the same ground on which he contested it. To take this view of the statute would annul, as far as the allowance of demands against the estates of deceased persons is concerned, the genera] doctrines governing the effect of former adjudications. An executor, administrator, heir, devisee, legatee, creditor, or other person having an interest in an estate may appeal from a judgment allowing against the estate a demand exceeding flO. [R. S. 1899, sec. 278.] If the demand is made after an actual contest by any party in interest, we think section 214 of the statutes does not contemplate that such party can have the matter reopened for another contest on the identical ground previously adjudicated. Now, though respondent would not have been concluded by the judgment allowing the demand if he had not appeared and asked to be heard, having done so, was he not bound to prosecute the matter still further or seek relief on appeal from the court’s decision, instead of depending on vacating the allowance later under section 214? We are of the opinion that denying respondent’s right to be heard on his application left him as fully entitled to invoke any other method of redress the law afforded, including the proceeding provided in section 214, as he would have been if he had not appeared at the hearing of the demand. A point quite similar was determined in Windsor v. McVeigh, 93 U. S. 274. The Congress of the United States had passed an act in aid of the suppression of the rebellion, which authorized the seizure and confiscation of the property of those in insurrection against the Government, and directing that proceedings under the act should follow the admiralty procedure. The property of Windsor was seized by a. Federal marshal and an information filed in the name of the United States setting forth that Windsor, since the passage of said act, had held an office under the government of the Confederate States and in various ways had given aid and comfort to the rebellion; that his property had 'been seized pursuant to the act and by reason of his conduct had been forfeited to the United States and should be condemned. On the filing of his bill the Federal district court ordered process of monition to issue and designated a day and place for the trial of the cause, with an order that notice be given by publication, warning all persons interested to appear at the trial to show cause why condemnation should not be decreed. Windsor appeared in response to the monition and filed a claim to the property and an answer to the libel. On motion of the district attorney, his claim, answer and appearance were stricken from the files of the court on the ground that the answer showed he resided in the city of Richmond, Virginia, within the Confederate lines, and was a rebel. The motion was granted and the court entered its decree condemning the property as forfeited to the United States. It was afterwards sold under this decree and purchased by defendant McVeigh, who took possession. In an action of ejectment instituted by Windsor, the question was whether the decree of condemnation, passed after refusing to allow Windsor to appear and defend the libel, was valid. It will be seen that Windsor did practically the same thing that Isaac Keele did; that is to say, appeared and asked to be allowed to defend in a proceeding affecting his interest. It will be seen, too, that his application was formal and the action of the court on it was a ruling entered of record. The Supreme Court of the United States held that the refusal to permit Windsor to defend, left his rights as much unaffected by the decree as they would have been had no notice of the proceeding been published. In passing on the proposition the court said:

“The question for determination is, whether the decree 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.] 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.

“The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or property, there he may defend; for the liability and the right are inseparable. This is the principle of natural justice, recognized as such by the common intelligence.

“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 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 history of this section was traced in Martin v. LaMaster, Admr. of Nichols, 63 Mo. App. 349, and it. was pointed ont in the opinion in that case that the relief provided by section 214 was originally given only to those parties interested in the estate who fell within the purview of the two preceding sections 212 and 213; but that in the current revision of the statutes, section 214 Avas so amended as no longer to refer exclusively to persons designated in the preceding sections, but instead to permit any of the designated persons to move within four months after the alloAvance of a demand for its vacation. The opinion said:

“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 as would be required to defeat it at a hearing on the merits; but only that such a probable showing must be made against its propriety as will convince the court that the matter ought to be reheard in order to be more sure of a correct result. The findings of fact contained in the judgment vacating the present allowance show the court was satisfied to that extent. There was no abuse of judicial discretion in the ruling to justify us in reversing it.

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 probate court and on a full bearing- and trial the demand is allowed, it can be set aside afterwards at the instance of a creditor or heir, for a rehearing- of the same issues. Perhaps if the allowance was vacated in either of those two contingencies, the ruling might be held to be an abuse of judicial discretion. But it is obvious that appellant’s demand was allowed by the circuit court without any contest, and under circumstances which constitute a case giving an interested party a clear right to invoke the remedy provided in section 214. The administrator of the estate of the deceased not only made no effort to prevent the allowance of appellant’s demand, but consented to it. There was no hearing on the merits in the circuit court. This being* the fact and Keele having been denied an opportunity to oppose the demand, we hold there was no error or abuse of discretion in ordering it set aside and a rehearing granted. The order to that effect will, therefore, be affirmed and the cause remanded.

All concur.