Webb v. First National Bank & Trust Co. of Joplin

602 S.W.2d 780, 1980 Mo. App. LEXIS 2577
CourtMissouri Court of Appeals
DecidedJune 26, 1980
DocketNo. 10722
StatusPublished
Cited by14 cases

This text of 602 S.W.2d 780 (Webb v. First National Bank & Trust Co. of Joplin) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Webb v. First National Bank & Trust Co. of Joplin, 602 S.W.2d 780, 1980 Mo. App. LEXIS 2577 (Mo. Ct. App. 1980).

Opinion

HOGAN, Judge.

Plaintiff brought this declaratory judgment action in the Circuit Court of Jasper County praying adjudication that a decree of adoption entered by the juvenile division of that court is void for want of jurisdiction. The trial court found the decree valid. Plaintiff appeals.

Edward Holt Marshall, plaintiff’s father, and defendant Mildred Rodgers (then Mildred Marshall) were divorced after the plaintiff was born on April 23, 1947. It is inferable from the record that defendant Mildred Rodgers was awarded custody of the plaintiff. Mildred then married defendant Howard Rodgers. Following their marriage, Mr. and Mrs. Rodgers filed a petition to adopt the plaintiff and on November 21, 1950, when the plaintiff was 3½ years of age, the Juvenile Division of the Circuit Court of Jasper County entered a decree declaring plaintiff to be, “to all legal intents and purposes,” the child of defendants Howard and Mildred Rodgers.

Mr. Marshall died intestate on August 2, 1975. On October 31,1975, plaintiff’s attorney was granted permission to inspect the record made in the adoption case. On February 24, 1976, plaintiff brought this action to set aside the decree and to have herself declared her natural father’s sole heir. Plaintiff alleged and it is conceded that if the decree is not void, Mr. Marshall’s only heirs were Dorothy Board, his aunt, and Dorothy Scott, his second cousin. Plaintiff joined both the aunt and the cousin as parties; defendant Board died while the action was pending and the defendant bank was substituted as her executor. Plaintiff’s adoptive parents were joined as defendants. They filed answers but neither was called as a witness.

The plaintiff introduced the record from the adoption case together with a stipulation of fact, both of which will be discussed in the course of the opinion. Among other things, the defendant offered parts of a pretrial deposition given by the plaintiff. Plaintiff testified that she had lived with her adoptive father until she was 19 years of age; that her relationship with her adoptive father was one of mutual love and [782]*782respect, and that the only reason she was attacking the validity of the decree of adoption was that Mr. Marshall had only one child, she was that child, and she believed she was entitled to inherit his estate. Such, capsulized, is the background of the appeal.

It is elementary that this court must inquire of its jurisdiction sua sponte, particularly when its jurisdiction is doubtful. St. Louis County Transit Co. v. Division of Employment Security, 456 S.W.2d 334, 335[1] (Mo.1970); Smith v. Santarelli, 355 Mo. 1047, 1047-1048, 199 S.W.2d 411, 412[1] (1947). In this case, our examination of our jurisdiction requires us to look to the jurisdiction of the trial court, for in this state, appellate courts acquire no jurisdiction on appeal from a void order except jurisdiction to determine the invalidity of the order or judgment appealed from and to dismiss the appeal. Kansas City Sanitary Co. v. Laclede County, 307 Mo. 10, 14-15, 269 S.W. 395, 397[2] [3] (banc 1925); In re Moore’s Estate, 354 Mo. 240, 249, 189 S.W.2d 229, 234-235[6] (1945); Ross v. Conco Quarry, Inc., 543 S.W.2d 568, 571[2] (Mo.App.1976). Jurisdiction over all matters pertaining to probate business, including jurisdiction to determine heirship was confided to the probate court by §§ 472.020 and 473.617, RSMo 1969, which were in effect when this case was tried. Younghaus v. Lakey, 559 S.W.2d 30, 31-32 (Mo.App.1977). In the Younghaus case, the plaintiff sought a declaratory judgment determining heir-ship after the probate court had made that determination, and it was held that the “first filed” principle applicable to courts of concurrent jurisdiction barred the plaintiff’s action. Younghaus v. Lakey, supra, 559 S.W.2d at 31-32.

In this case, the estate of Edward Holt Marshall was being administered when the action for a declaratory judgment was filed. Jurisdiction of the probate court had already attached, as far as the determination of heirship was concerned. Nevertheless, the record reflects that the Probate Court of Jasper County was given notice of the filing of the declaratory judgment proceeding by mail on March 24, 1976. There is nothing in the record which indicates that the probate court had exercised its jurisdiction when this action was commenced; likewise there is no positive indication that the probate court is holding the matter in abeyance. Direct inquiry of the probate court indicates that administration of the estate has progressed, but final determination of heirship and final settlement of Mr. Marshall’s estate is being continued pending resolution of this appeal.

We conclude, with considerable reserve, that the Circuit Court of Jasper County acquired jurisdiction of this cause. Sections 472.020 and 472.030, RSMo 1969, conferred full “equitable powers” upon the probate court to effectuate its own jurisdiction, In re Myers’ Estate, 376 S.W.2d 219, 224 (Mo.banc 1964), but as the court there noted, the phrase “probate matters” is not susceptible of concise definition. We do not suppose that §§ 472.020 and 472.030 were meant to convert the probate court into a court of general jurisdiction. Adoption, like illegitimacy, is a status, determination of which affects a good many relationships other than the right of the adoptive child to inherit from his or her natural father, R. Leflar, American Conflicts Law, §§ 239, 241 (3rd ed. 1977), and the circuit court had jurisdiction to determine plaintiff’s status in this action. Menees v. Cowgill, 359 Mo. 697, 701, 223 S.W.2d 412, 413[1] (1949); Keiser v. Wiedmer, 263 S.W.2d 63 (Mo.App.1953). In an analogous situation involving an illegitimate child’s right to inherit, our colleagues at St. Louis concluded the plaintiff was entitled to have her status determined in a declaratory judgment action, but the determination of heirship per se must be left to the probate court, even though the findings in the circuit court would be res judicata in the probate court. N.R. v. R.J.D., 588 S.W.2d 76 (Mo.App.1979). We agree, and adhere to that ruling in this case.

On the merits, counsel has briefed five overlapping and intermingled assignments of error. The defendant bank has answered these points as presented. In the view [783]*783we take of this appeal, discussion of every point is unnecessary. However, because the appeal involves a number of juridically imprecise notions, e. g., “jurisdiction,” “collateral attack,” and “a judgment void on its face,” several preliminary observations are appropriate.

It is important to determine whether this attack upon the decree of adoption is a “direct” or a “collateral” attack. Many years ago, our Supreme Court distinguished a “direct” attack from a “collateral” attack upon a judgment in Howey v. Howey, 240 S.W.

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Bluebook (online)
602 S.W.2d 780, 1980 Mo. App. LEXIS 2577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-first-national-bank-trust-co-of-joplin-moctapp-1980.