State ex rel. Spickerman v. Allen

Brace, J.

This was a proceeding by mandamus to compel the respondent, judge of the probate court of Madison county, to grant an appeal to the circuit court of said county from an order of said probate court revoking the appointment of relator as guardian of John Dasch, a minor. A demurrer to the return of respondent to the writ was overruled, peremptory mandamus refused, and judgment for costs against the .appellant rendered.

The respondent, in his return, admits that at-the May term of said probate court, and on the thirteenth of May, 1884, one Wilhelmina- Schmidt filed in said; probate court her petition to have the order of the probate court of Madison county, theretofore made,- appointing the relator, John Spickerman, guardian of said-minor, revoked and rescinded ; that on the fourteenth of May, 1884, the relator filed his answer to said petition, and that said Wilhelmina, on the same day, filed her replication to said answer, and that said court proceeded to hear and try the matters and issues presented; *23 by said petition, answer, and replication, and did, on the sixteenth of May thereafter, after hearing parties, witnesses, and arguments, order that said order of the twenty-fourth of April, 1883, be revoked, set aside, and for naught held; admits that the relator, on the same day, prayed for an appeal from this order to the circuit court of Madison county, filed his affidavit therefor, and tendered a good and sufficient bond, and that an appeal was refused him ; that in March, 1883, George Dasch, then residing with his infant son, John Dasch, in Madison county, Missouri, died, leaving his said son, aged six years, in a helpless condition, in said county, without a legal or natural guardian residing in the state of Missouri ; that on the twenty-fourth of April, 1883, the following order was entered upon the records of the probate court of said county by the respondent:

“In the probate court of Madison county, Missouri. In vacation. April 24, A. D., 1883. In the matter of John Dasch, minor heir of George Dasch, deceased. It appearing to the satisfaction of this court that John Dasch is a minor, under the age of fourteen years, and resides in Madison county, Missouri, and that he has no legal or natural guardian ; it is, therefore, ordered by the court that John Spickerman be and he is hereby appointed guardian of the person of the said John Dasch, minor heir of the said George Dasch, deceased, and that before entering upon the duties of his office, he is required to enter into a bond to the state of Missouri, for the use of John Dasch, with two or more securities, to be approved by the court, in the sum of fifty dollars, conditioned for the faithful discharge of his duties, according to law;” that the said Spickerman then filed his bond, as such guardian, which was approved by the respondent (said approval appearing only by the following entry on said bond): “Approved by the court this twenty-sixth day of April, 1883, N. B. Allen, Judge of Probate.” Respondent avers that said appointment of *24 said Spickerman as guardian, as aforesaid, was made and entered by Mm in vacation of said probate court, and that his approval of said bond was in vacation of said court, and “that neither said order of appointment nor said bond was ever afterwards, by the said probate court, at any of its terms, specially approved,” and that it was shown by competent evidence in the proceeding between Wilhelmina Schmidt and the relator, at the May term, 1884, of said court, that said minor then, and at the time of the making of said order of appointment, and of the approval of said bond, had living a mother, to-wit: the said Wilhelmina, residing in the state of Illinois.

These facts, exhumed from a mass of argumentation and immaterial statements contained in the return, are relied upon as the grounds upon which relator’s prayer for an appeal was denied, in effect saying to him that “having decided these issues correctly in the case tried before me, you have no right of appeal.” The demurrer to the return should have been sustained, whether the order of April 24, 1883, was valid or invalid: whether the determination of the probate court on that or any other issue raised in the proceeding was right or wrong, could afford us no ground for refusing respondent the right to appeal, the only means provided by law by which he could have those questions passed upon by a superior tribunal. It is foreign to the object and purpose, as it is inconsistent with the nature of the proceeding by mandamus, to review judicial proceedings; and in this case whatever they may have been, and whatever effect the action of the probate court may have had on the rights of the parties contestant, and who had submitted those rights to the exercise of its jurisdiction, could not be inquired into or reviewed by the circuit court in this proceeding, and could not afford any ground for refusing the writ. High Ex. Legal Rem., ch. 3, secs. 147, 150, 188, 189, 190; State ex rel. v. Norton, 20 Kan. 506 ; Potter v. Todd, 73 Mo. 101 .

*25 The probate court had jurisdiction of the subject matter of the issues raised before it by the parties to the proceeding. Const., art. 6, sec. 34 ; R. S., 1879, sec. 1176. The court took cognizance of the case and rendered judgment; its order “revoking, setting aside, and for naught holding,” the order of April 24, 1883, was a final determination of the issues raised by the relator in his answer in that proceeding, from which an appeal would lie to the circuit court of Madison county. R. S., 1879, secs. 2616 and 292. It is no answer to say the order rescinded was a nullity ; whether it was or not was an issue raised in the case and decided by the probate court, and that decision relator had a right to have reviewed. It is no answer to say that it was not a final judgment, or order, because it did not finally determine the guardianship of said ward, but simply opened the way for relator or some one else to come in and be appointed as such guardian. It determined finally all the rights claimed by the relator, under that order, in his answer, so far as it was in the power of the court to'determine them in that proceeding.

The judgment of the circuit court is reversed and the cause remanded, and it is ordered that a peremptory writ of mandamus be issued by said circuit court to the respondent, or his successor in the office of probate judge of Madison county, commanding him to grant relatof’s appeal.

All concur.