State ex rel. McManus v. Muench , 217 Mo. 124 ( 1909 )

LAMM, J.

This is an original proceeding on the suggestion of relator for the State’s writ of prohibition directed to the Hon. Hugo Muench, circuit judge —the suggestion being within section 4448, Revised Statutes 1899 (q. v.). Passing a rule that respondent show cause, we let a preliminary writ go. On return coming in, relator moves for judgment on the pleadings and that the preliminary rule be made absolute.

Such is the issue at law up for détermination.'

The motion confesses the averments of the return. On the other hand, the return practically confesses the averments of fact in the petition. In this condition of things, borrowing from both, we make thé following statement of the case:

Camilla S. W. McManus died testate, seized of á great estate in realty in St. Louis, in November, 1905, making her granddaughter, Camilla S. W. Burrows, and her son, Thomas Ward McManus (relator), devisees under her will. To Thomas Ward, one-half of the estate was devised absolutely. One-third of the remainder went to the granddaughter, Camilla, absolutely, as we infer. However that be, two-thirds of the remainder was devised to William F. Crow in trust, said trustee to manage it, give bond and pay the net income over to the granddaughter, Camilla, during her life. If she died before Thomas Ward then the trust estate became his absolute property. If he died before her it became absolutely hers.

The will being probated, Crow qualified as trustee and took possession of the trust estate with the burden of administering it under the will. Among other provisions of the will was this: “I hereby give said trustee, or his successors in this trust, full power, with the approval of the St. Louis Circuit Court, to sell any of the property subject to this trust.” In that connection it provides that the trustee is authorized and directed to invest all moneys and the proceeds of all sales of the trust property in ways pointed out.

Mr. Crow died on December 3, 1907, leaving a brother of the half blood, and certain descendants of a brother of the full blood and sisters of the half blood, as his heirs.

The will nominating no successor to the trust, the cestui que trust, Camilla, thereupon brought suit in the circuit court of St. Louis against Thomas Ward McManus as deyisee, and said heirs at law of the said trustee. Her petition made averments only pertinent to the following relief and no other: First, the appointment of a trustee in place and stead of William F. Crow, deceased; and, second, to divest out of his said heirs the legal title to the trust estate, cast on them by the death of their ancestor, and to vest the same in the court’s appointee.

Camilla pointed out in her petition that the live duties of trustee called for not only fine integrity and business capacity but personal friendship towards her, as cestui que trust,, that she was primarily interested in the selection of a new trustee acceptable to her from such standpoints, and that Mr. Crow was selected by her grandmother for that fiduciary relation because he ideally filled the office of trustee. She suggested Henry F. Hafner as Mr. Crow’s successor, he possessing the qualifications alleged by her to be incident and necessary to administering the trust.

Thomas Ward admitted by answer all allegations of the petition material to the appointment of a new trustee and the divesting and vesting of the legal title to the trust estate. He joined issue only on those averments relating to the appointment of Mr. Hafner because of his alleged marked friendship to Camilla, averring that the trustee should stand neutral in that particular and he an impartial person as between him and her.

The adult defendants (heirs of Crow) answered confessing the allegations of the petition and consenting to the appointment of a successor in trust. A minor defendant (one of Crow’s heirs) answered through his guardian ad litem, averring ignorance of the facts, pleading his tender years, asking that strict proof be made and praying the court to protect his rights. « «4

Such other proceedings were had in that cause that it came to judgment on May 4,1908. At the trial, evidence was put in and admissions additional to those in the pleadings were made. Thereupon the court made a finding of facts substantially in accord with the allegations of the petition and spread its finding of record in its decree. Based on such findings, it was ordered, adjudged and decreed that Matthew Park, Esq., be appointed trustee as successor to William E. Crow, deceased, that the title to the trust estate vested in him by the will be divested out of his heirs at law and vested into the new trustee, who should thereafter have the rights and powers and be subject' to the duties and obligations defined in the grandmother’s will. The court fixed the trustee’s bond at the penal sum of $10,000, and provided for additional bond in certain contingencies. Adjudging costs, etc., the decree contains the following clause (Note: This clause lies- at the root of this controversy): “It is further ordered, adjudged and decreed that this cause shall he retained in this court, as to the plaintiff and defendant, Thomas Ward McManus, and as to said trustee, Matthew Park, until the further order of this court in respect to all matters connected with the qualifications of said Matthew Park, as trustee, and his administration of said trust.”

In that proceeding, Sim T. Price and R. M. Nichols were attorneys for Thomas Ward McManus; John B. Denvir, Jr., for the heirs of William F. Crow; and James P. Maginn, for the granddaughter, Camilla. It seems a draft of the decree was prepared and that such draft bears the following earmarks: “O. K. [signed] Sim T. Price, R. M. Nichols, attys. for Thomas Ward McMánus. O. K. (signed), John B. Denvir, Jr.”

On the 24th of July, 1908, the trustee filed a motion in the aforesaid cause, calling the court’s attention to the fáct that it had retained jurisdiction “on all matters pertaining to the administration of the trust herein” and showing to the court that the trustee had retaining counsel and, in and about the performance of legal services as such, they had rendered services for which they claimed a certain sum, and an order was prayed to allow and pay. Accompanying this motion was an itemized account of length and particularity, stating the dates on which services were rendered and their character and extent. Notice was given of the filing of this motion and, on a day later in July, the parties appeared by counsel. The court having indicated that the attorney’s fees should be paid out of the income and not out of the corpus of the trust estate, Thomas Ward McManus withdrew from the hearing, deeming that, on that view, he had no concern in it. Thereupon the court adjudged and decreed that the trustee pay a certain sum to his attorneys out of the income of the trust estate. It seems that the form of this decree was also drafted and .bears the following: “O. K. (signed); R. M. Nichols, attorney for Thomas Ward McManus.”

Neither the last judgment nor the original decree, divesting the title of the trust estate out of the heirs of the deceased trustee and appointing Mr. Park as successor in trust and vesting the title in him, was appealed from.

So matters stood until October, 1908. On tbe ninth day of that month a notice was served, entitled in the cause aforesaid and directed to Thomas Ward and Camilla, notifying them and each of them that the trustee would on the 12th day of October, 1908, present a petition in said cause requesting the court to empower him to borrow on the trust property a sum of money sufficient to pay off charges "against the estate, praying that directions be given as to the terms and manner of making the loan and that an order be made determining whether said charges against the trust estate in whole or in part should be paid out of its corpus or income. This notice was served on Thomas Ward on October 9, 1908. As we grasp it, the petition foreshadowed by such notice was filed in the principal cause on the 13th instead of the 12th of October. It sets forth that jurisdiction of the trust estate was retained by the court by its original decree. On such postulate it proceeds to show that notice was given to Camilla and Thomas Ward; it then sets forth a description of the trust property (which we omit) and the appraisement of certain parts of it, and avers it was allotted to the trustee by a judgment in a partition suit in the circuit court of St. Louis; that it was there ádjudged that the trustee should pay one-third of the taxes, general and special, existing as charges against the entire estate of Camilla S. W. MeMamis, testatrix; that said taxes had accrued to a large amount and were running at a punitive rate of interest; that the trustee had no funds to pay them; that the costs in said partition suit (inclusive of commissioners and attorneys’ fees), one-third of which was taxed against the trust estate, aggregated $33,614.45, which the trustee was unable to pay for lack of funds; that he had made efforts to sell the unimproved real estate, but that stringency in the money market and the weak demand for that kind of property had prevented a sale; that the trustee believed the financial sky would brighten and that, say, in a year, he conld obtain a reasonable price largely in excess of that now offered; that a present sale would result in waste and loss to the trust estate; that the attorneys and commissioners in the partition suit would wait no longer for their costs and fees, but proposed at once to sue out an execution on the partition judgment and knock off the property at sheriff’s vendue to satisfy it; that such sale, because of the prevailing money market, would work a great hardship on the trust estate by sacrificing it.

Wherefore, he prayed for power to borrow $20,000 to pay his pro rata of said costs and accrued taxes, to be secured by a trust deed on the corpus of the estate, due two years from date with current interest, and to pay commissioners for securing the loan “and that the court make such orders and grant him such relief as may appear proper in the premises.”

Continuing, the petition avers that certain attorneys have unliquidated charges against the trust estate for legal services rendered in the partition suit during the trusteeship of Mr. Crow; that part of the back taxes accrued in the lifetime of testatrix, part of them are special tax bills for street sprinkling and street improvement; that there is a controversy whether certain items should be charged against the' corpus or income of the trust estate.

Wherefore, petitioner prayed the judgment and direction of the court in that behalf.

To the foregoing notice Thomas Ward McManus paid no attention and to that petition he remained mute, answering not.

Presently, on the 23d day of October, 1908, the matter coming on for a hearing, the following decree was entered:

“The above matter coming on to be heard this day, upon the application of Matthew Park, trustee under the will of Camilla S. McManus, deceased, for permission, pursuant to the last will of Camilla S. McManus, deceased, to alienate part of the trust estate herein by mortgage or in such other manner as to the court might seem meet and proper in the premises, in order that said trustee may pay charges against said 'trust estate duly allowed by the St. Louis Circuit Court in a cause in partition, being numbered 43,345, in Division No. 4 thereof, and such other proper costs, expenses, and liens as this court may by proper order direct to be discharged therefrom, and the court having been fully and duly advised in the premises by counsel for trustee and other parties in interest, all of whom have been duly notified of said application as shown by the evidence; and this court having reserved the power in the original decree herein to make such orders in the administration of the trust as might be necessary, it is hereby ordered by this court by virtue of the power conferred by the will of Camilla S. Mc-Manus, deceased, that said trustee sell at public auction to the highest bidder the following described real es-. tate lying and being situate in the city of St. Louis, in lieu and stead of the tract of land in the petition described, belonging to and being part of the trust estate of which said Matthew Park now stands, seized as such trustee, to-wit: [Here follows a description of the real estate to be sold, which we omit.]

“It is further ordered that said sale shall be either for cash or at the option of the purchaser for one-third cash, and remaining two-thirds payable in one and two years from date of sale with interest from date at six per cent per annum, deferred payments to be secured by customary mortgage upon the property sold; said sale to be conducted at the east front door of the court house in the city of St. Louis, Missouri, at 12 o’clock noon on Monday, the 16th day of November, 1908; and that said trustee shall give public notice of said sale by advertisement thereof for twenty days in a daily newspaper printed in the English language in the city of St. Louis, the last insertion to he not more than two days previous to the day of sale.

“It is further ordered that said trustee shall further advertise said sale by erecting suitable sign boards on the above described property and by printed hand bills regarding the same and that he be authorized to spend a reasonable sum in whatever methods of advertising as to him may seem necessary.

“It is further ordered that successful bidders for said property shall be required to deposit with said trustee as earnest money, a certified check for at least ten per cent of the amount tó be paid for .said property; residue to be paid or secured as aforesaid immediately upon approval of said sale by this court.

“It is further ordered that said sales shall be subject to the approval of this court and that said trustee upon conducting same shall forthwith report said sales to this court for its approval.

‘ ‘ Said trustee is authorized to employ an auctioneer to conduct said sales and shall upon approval of court make and execute such conveyance or conveyances as may be necessary to fully invest title to'all said real estate in said purchasers. ’ ’

On November 4, 1908, relator filed an affidavit for an appeal from the decree and his appeal was denied. By virtue of the decree the trustee presently advertised the described real estate, putting the sale on November 16, 1908; and on November 12th, relator filed here his suggestion for prohibition, challenging the jurisdiction of the circuit court to render the decree ordering a sale.

The first and main proposition discussed by counsel is the right (affirmed on the one side and denied on the other) of the circuit court of the city of St. Louis to retain jurisdiction of the administration of the trust estate by its original decree, entered on the pleadings in the principal case. It will be observed there was a clause in that decree pointedly retaining such jurisdiction. The trial court evidently held that by virtue of that clause the administration of the whole trust was held in chancery. Accordingly, all subsequent proceedings are entitled as in that case and are by way of supplemental motions and petitions filed therein — hearings proceeding on mere notice without summons. The argument of respondent runs, first, that the circuit court on its equity side had inherent jurisdiction over the subject-matter of trusts, therefore (they argue) the decree was well enough; second, that the will of the grandmother (witness the clause heretofore quoted) contemplated that the trust, in so far as power was given to the trustee to sell real estate, should be administered under the supervision of a chancellor; third, that the original decree was entered by consent; and, fourth, that it was not appealed from. Hence, on one or all said grounds, it is immune from collateral attack.

But we are of opinion that learned counsel, through inadvertence, argue unsoundly in that behalf and that the preliminary rule in prohibition should be made absolute. This, because:

I. (a) Conceding that trusts and their administration are an ancient head of equity jurisdiction, yet in Missouri jurisdiction of the subject-matter of a concrete case in equity or law is only acquired by a court through pleadings filed, process issued or appearance entered, and decrees entered within the lines of the issues framed by pleadings. At the very old ftommon law, pleadings were oral and some court officer framed issues from these oral complaints. So, when Samuel judged Israel, or some Calif dispensed justice in Bag-dad, or some Jewish king sat in judgment at the gates of Jerusalem, mo form of pleadings was necessary to the hearing of a controversy, and questions of jurisdiction were scarce and of little or no bother. But in modern jurisprudence, a court remains passive until issues are framed in accordance with written law and their judgments must respond to such issues. A judgment is “the sentence of the law upon the record.” It is the application of the law to the facts and pleadings. Any other view would be illogical and tend to confusion and chaos in the administration of justice. [Black v. Early, 208 Mo. l. c. 313, and cases cited.] Speaking to the point, we quote with approval from a sound authority-: “The judicial power can be set in motion in civil matters only by some person — using the word in its broadest sense — in a case against another person. The courts cannot, ex mero motu, set themselves in motion, nor have they power to decide questions except such as are presented by the parties in their pleadings. The parties, by their attorneys, make the record, and what is decided within the issue is res adjudicata; anything beyond is coram non judice and void.” [Andrews’ Stephen’s Pleading (2 Ed.) p. 34; see, also, Reynolds v. Stockton, 140 U. S. 254.]

To the same effect are our own cases. “The subject-matter of a suit,” says Macfarlane, J., in Hope v. Blair, 105 Mo. l. c. 93, “when reference is made to questions of jurisdiction, is defined to mean ‘the nature of the cause of action and of the relief sought.’ [Cooper v. Reynolds, 10 Wall. 316.] ‘ Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. To constitute this there are three essentials: First. The court must have cognizance of the class of cases to which the oneadjudged belongs. Second. Theproperpartiesmustbepresent, and, third, the point decided must he, in substance and effect, within the issue.’ [Munday v. Vail, 34 N. J. Law 422.] A court may be said to have jurisdiction of the subject-matter of a suit when it has the right to proceed to determine the controversy or question in issue between the parties, or grant the relief prayed. What the controversy or issue, in any case, is, can only be determined from the pleadings. When the court has cognizance of the controversy, as it appears from the pleadings, and has the parties before it, then the judgment or order, which is authorized by the pleadings, however erroneous, irregular or informal it may be, is valid until set aside or reversed upon appeal or writ •of error. ’ ’

Referring to the foregoing, let it be admitted, also, for the purposes of the case at bar, that “the question •of jurisdiction must be tried by the whole record.” [Hope v. Blair, supra, l. c. 94; Adams v. Cowles, 95 Mo. 506.]

Let it be further admitted, arguendo, that the scope of the pleadings and issues in a lawsuit may now and then be somewhat enlarged beyond the strict letter of the pleadings by the construction put upon them by court and counsel at the hearing, and that such theory will bind parties litigant not only on appeal but on a question of res adjudicata. [Bragg v. Railroad, 192 Mo. l. c. 358; Donnell v. Wright, 147 Mo. l. c. 646-7.]

Yet none of these admissions aid respondent in this case. There have been presented to us the admissions of fact and a running colloquy between court and counsel at the hearing of the principal case. It is claimed that said admissions and colloquy are part of “the whole record.” Conceding (without determining) that fact, yet we find the admissions and observations- made in the colloquy are strictly responsive to the plain issues framed by the pleadings in the original case and nothing else. Those issues we have stated. Briefly, they are the appointment of a new trustee and putting that trustee in the shoes of the old one— (i. e., vesting him with the title to the real estate devised in trust by the grandmother’s will). Such being the simple, sharp and only issues, the decree invoked thereby should have contented itself with deciding them, and, having set them at rest by the appointment of a hew trustee and providing for his bond, and having invested him with title, the power of the court in the subject-matter of that particular suit was exhausted and at end. This certainly is so unless we adopt the heresy that a court, sua sponte, may hold a trust estate in its grasp for all purposes of administration under some droll notion that once in chancery for any purpose whatsoever a trust estate is always in chancery for all purposes whatsoever.

A general doctrine, in point, is thus stated: “Upon the entry of a final order or one which becomes final by operation of law, the jurisdiction of the court in the suit in which such order is entered is exhausted, and further proceedings therein may be prohibited.” [16 Ency. Pl. and Pr., 1115.]

(b) It is argued that the will of the grandmother contemplated that a court of equity might be invoked to approve a sale of real estate by the trustee under the powers donated to him. But, in this connection, it must also be remembered that the grandmother’s will, ex vi termini, contemplated that a person, not a court, should manage the trust. The finger can be put on nothing in that will even squinting at a wish on the grandmother’s part that the execution of the trust raised should be subjected to the traditional delays and expenses of an administration in a court of chancery. The direction in that will that a sale of any of the trust real estate should not be effectual without the approval of a court, falls very far short of bespeaking the general judicial exercise of the large power of administering the trust through orders and directions of court. Not only so, but the subject-matter of the corpus of the trust estate, the subject-matter of the powers donated by the will, and the subject-matter of the administration of the estate under those powers, were not brought into court in the original proceeding for the purpose of administration then or thereafter; so that we are not called upon to decide whether the administration of that trust could be taken from the shoulders of a trustee selected by testatrix, or his successor named by the court, and put upon the shoulders of a chancellor in a direct proceeding leveled at that end.

(c) It is next argued that the original decree was by consent, and, finally, that no appeal was taken, therefore, the decree was effectual to hold the trust estate in administration. But if the chancellor, as we have held, reached out his arm too far and grasped a jurisdiction not within the issues, then that part of the decree outside the issues became cofam non judice and void. In that view of the case no appeal was necessary, and the void part of the judgment is subject to collateral attack.

Moreover, while it seems that counsel, uO. K.’d” the decree, whatever that may mean, yet we cannot agree to the doctrine that counsel, ostensibly merely employed in the matter of an appointment of a new trustee to administer a trust estate and to invest that new trustee with title to the estate, thereby and without more held a warrant of attorney from their client to confer jurisdiction on the court to administer the whole trust after the appointment of the new trustee, and all this by placing the hieroglyphic cryptogram, “O. K.,” on a decree prepared for entry presumably by counsel, whether in court or out does not appear. To put jurisdiction on counsel’s “0. K.” is to stand it on an apex instead of a base, to rest it on a sign or symbol, rather than on the pleadings, the issues and the evidence.

II. The decree of sale, singularly enough, is based on a petition directed to the avoidance of any sale whatever, through the expedient of borrowing money to tide over the pressing emergency confronting the trustee in his stewardship. That decree, in any event, is so foreign to the application made that it could only stand on the broad ground that the whole trust estate and its administration were already held in the hollow of the hand of the chancellor by force of the original decree, and that he could proceed, of his own motion, to administer the details of the trust. As we have already held that the chancellor had no such jurisdiction in this case, it would be unprofitable to consider the decree of sale from the viewpoint of standing on its own legs; because, the jurisdiction to order that sale being referred back to the clause in the original decree retaining jurisdiction of the whole trust, therefore, as that is the stem on which it grew, when that stem is cut down, its support is taken away and it falls to the ground.

Other questions are discussed with vigor and learning by counsel for respondent, but we deem them not vital to the deciding question in the case.

Let the preliminary rule in prohibition be made absolute and the final writ go. We will not adjudge costs against Judge Muench. Let the relator pay them. It is so ordered.

Valliant, G. J., Gantt, Fox, Woodson and Graves, JJ., concur; Burgess, J., dissents.