Opinion
No. 21735.
October 6, 1952.
APPEAL FROM THE CIRCUIT COURT, CALLAWAY COUNTY, ROY B. MERIWETHER, J.
William W. Van Matre, Jr., Mexico, Clarence P. Lehnen, Wellsville, for appellant.
John M. Cave, Fulton, for respondent.
This is a proceeding in mandamus, brought by relator, John H. Lowry, against the Probate Judge of Callaway County, Missouri, to compel the appointment of himself as administrator of the estate of his brother, Price M. Lowry, deceased. Relator was granted a change of venue from the regular Judge of the Callaway County Circuit Court, and the Honorable Roy B. Meriwether, Judge of the Eleventh Judicial Circuit was named to hear said cause and at the conclusion of the evidence rendered judgment against relator. After an unsuccessful motion for new trial, relator appealed.
Price M. Lowry died intestate on May 14, 1949. On that date he was an inmate of the United States Government Hospital at Danville, Illinois, having been adjudged to be a person of unsound mind by the Probate Court of Callaway County, Missouri, the county of his residence. At the time of the death of Price M. Lowry, and for many years prior thereto, T. H. Van Sant of Fulton, Missouri, was his guardian. Said guardianship was being administered in the Probate Court of Callaway County. Deceased left an estate of the approximate value of $50,000. Surviving him were brothers, sisters and nieces.
On May 16, 1949, respondent, as Judge of the Probate Court of Callaway County, appointed Mr. Van Sant administrator of the Price M. Lowry estate. On June 7, 1949, relator-appellant filed his application for letters of administration. A hearing was had on June 30, 1949, and the application denied.
One of the reasons given by the learned trial court for denying relator relief in the instant case was that he was guilty of laches. Here are the facts which, in our opinion, fully justify that ruling. After relator's application was denied by respondent Probate Judge, relator, on July 29, 1949, filed in the Circuit Court of Callaway County, a petition for a writ of mandamus against respondent. That case remained upon the docket of the Circuit Court of Callaway County until May 29, 1950, when it was dismissed by the court because of the alleged failure of relator-appellant to prosecute it. No further action was taken by relator-appellant until December 23, 1950, on which date he filed the present action for mandamus and out of which this appeal arises. In the meantime, the Price M. Lowry estate had been fully administered. Notice of final settlement was published for the August, 1950, term of the Probate Court of Callaway County. At said August, 1950, term an order was entered authorizing Mr. Van Sant, as administrator to sell government bonds in the amount of $18,500. And, at the same term, an order was entered to distribute the remaining bonds to the distributees entitled thereto. Receipts for the money and the bonds in kind were received from all of the distributees except relator-appellant, who received his distributive share but did not receipt therefor. Final settlement accounting for all proceeds in the inventory was filed with the Probate Court on November 16, 1950, 37 days before this present action was instituted.
Dealing with the writ of mandamus the St. Louis Court of Appeals in the case of State ex rel. Schulz v. Fogerty, 195 S.W.2d 908, loc.cit. 911, said this:
"There is no fixed or hard and fast rule which compels the issuance of such a writ, and even in cases where it could very properly be issued our courts have withheld it because of conditions which did not appeal to a sound discretion. The correct rule, deduced from the modern practice, seems to be that mandamus, while no longer a mere prerogative writ, is yet somewhat of a discretionary writ, and should be issued, not in the exercise of an arbitrary or capricious discretion, but in the exercise of a sound legal discretion in accordance with established rules of law. And among the things appealing to the discretion of the court are laches. State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, loc.cit. 133, 103 S.W. 1052; State ex rel. Missouri Glass Co. v. Reynolds, 243 Mo. 715, loc.cit. 720, 145 [148] S.W. 623." (Italics ours.)
The failure of the relator, knowing of the dismissal by the Circuit Court of his first action, to take any further steps until after the estate had been administered and all distributees had received their shares, called for the denial of the writ. To have issued it would have served no useful purpose.
The judgment is affirmed.
DEW, J., concurs.
CAVE, J., not participating.