author: PARIS, J.

text:
    THE STATE ex rel. BERT F. FENN et al. v. EUGENE McQUILLIN, Judge of Circuit Court, et al.
    In Banc,
    April 2, 1914.
    1. PROHIBITION: Pleading: Demurrer and Answer. A respondent, in prohibition, cannot in one pleading demur to the whole petition, deny the whole petition a,nd answer to the whole petition; but, out of grace, where objection to the loose method is not urged, the court will consider the case on the demurrer assailing the petition as failing to state a cause of action.
    ‘2. - — ■: No Pleading Except Petition and Return. Ordinarily where all the pleadings in a prohibition are the petition upon which the preliminary writ was issued and respondent’s return, in the main a general denial, the case will be dismissed.
    3. -: No Grounds: Defect of Parties, Etc. Allegations in the petition for prohibition that there is a defect of parties defendant in the equity suit filed in the circuit court, that the bill in that suit exhibited no equity and that the trial court had no jurisdiction of the subject-matter of the litigation (all being defects for which a demurrer will lie), and there being no alie* gation that a demurrer thereto had been overruled, do not amount to a statement of a cause of action entitling the relators to a writ of prohibition.
    4. -: No Ruling on Demurrer: In Vacation. Where it does not properly appear that the trial court had overruled defendants’ demurrer to the petition urging lack of jurisdiction they will be denied a writ of prohibition. An allegation that in vacation before the return day, “the court refused to pass on said demurrer and ordered all defendants to show cause why a receiver should not be appointed” is not sufficient. Before prohibition will lie on the ground of a lack of jurisdiction, the trial court must have so ruled as to make manifest a claim of jurisdiction. The statute does not require a court to either hear and pass upon a demurrer in vacation, or to hear and pass upon it until the return term has come around.
    5. -: Threatening to Appoint Receiver. Where the record. shows that all the trial judge did was to make an order upon defendants to show cause on a day certain why a receiver for a corporation should not be appointed, and before such day arrived and before the court was advised as to whether notice to show cause was served upon relators or any of them, a writ of prohibition was sued out of the Supreme Court, the writ will not be allowed on the ground that the court was threatening to appoint a receiver. The court cannot forecast what action the judge would have taken, but must presume that he knew the law and would follow it.
    6. -: Examination of Reasons for Relief Prayed for in Trial Court. Where the petition in the equity case is not a part of the petition filed in the Supreme Court for a preliminary rule in prohibition, and this latter petition is attacked by a demurrer, the court will not go into the petition filed in the trial court to ascertain and adjudge whether it states sufficient facts to justify the relief prayed for or any relief grantable by a court of equity.
    7. -: -: Exhibit Attached to Petition. The general rule is that an exhibit attached to a petition is not such a part of it as to save it from being bad on demurrer, even though if the petition were aided or eked out by the contents of the exhibit it would be good as against demurrer; and this is true, even though the petition states the exhibit is made a part of the petition. And the rule is applied to petitions for writs of prohibition.

      Prohibition.
    Writ denied.

      Bert F. Fenn and James T. Roberts for relators.
    (1) “Where the act complained of affects the* complainant solely in his capacity as a member of the corporation, whether as stockholder, director, president or other officer, it is the act of the corporation. Whether acting in stockholders’ meetings or through its agents, the board of directors, then snch action is the management of the internal affairs of a corporation.” “A court of equity, in a jurisdiction where a foreign corporation has its situs for the transaction of business, and where its property is situated, is without jurisdiction, in the absence of a statute, to appoint a receiver for a foreign corporation at the suit of a resident stockholder who complains alone of the internal management of its affairs. Sidway v. Land Co., 101 Fed. 481; 19 Cyc. 1236; 13 Am. & Eng. Ency. Law, 849; Wilkins v. Thorne, 60 Md. 236; Importing Co. v. Locke, 50 Ala. 332; Dodge v. Mfg. Co., 69 Ga. 665; Andrews v. Moon, 162 Mass. 294; Day v. Car Springs Co., 2 Duer. 608; Leary v. Columbia River Co., 82 Fed. 775; Mining Co. v. Brown, 58 Fed. 644; Hutchinson v. Car Co., 104 Fed. 182; North State Co. v. Field, 64 Md. 154; Dreyfus v. Seal, 37 N. Y. App. Div. 351; State ex rel. v. Denton, 229 Mo. 187; Madden v. Electric Co.', 181 Pa. St. 617, 38 L. R. A. 638. (2) Where the object of the action is to prevent or redress a wrong to the corporation, the corporation itself is an indispensable party either as plaintiff or defendant. 10 Cyc. 995.

      George C. Mackay and W. G. Carpenter for respondents.
    (1) Prohibition will not lie if the petition states sufficient facts to justify any equitable relief, though different from that asked in the prayer for relief. A court’s jurisdiction is not determined by the prayer for relief. State ex rel. v. Rearing, 180 Mo. 63; Pattison, Mo. Code Pleading (2 Ed.), sec. 333; 31 Cyc. 110. (2) Prohibition should not deprive the court of its well-known equitable jurisdiction to compel directors unfaithful to their trust to account for corporate assets taken by them from a foreign corporation. Such an action does not regulate the “internal affairs” of the foreign corporation. Sloan v. Clarkson, 105 Md. 171; Wineburgh v. U. S. Co., 173 Mass. 60; Richardson v. Clinton Co., 181 Mass. 580; Babcock v. Farwell, 245 111. 14; Edwards v. Schillinger, 245 111. 23; Yoorhees v. Mason, 245.111. 256; Harding v. Glucose Co., 182 111. 551; Dunbar v. Telephone Co., 224 111. 9; Watkins v. Company, 107 La. 107; Guilford v. Company, 59 Minn. 52; Miller v. Quinsey, 179 N. Y. 294; Grant v. Cobre Co.,- 193 N. Y. 306; Wilson v. Car Co., 64 N. J. Eq. 534; (3) Such right in favor of a foreign corporation may be established by minority stockholders as plaintiffs when the directors controlling the corporation are ■themselves the wrong-doers complained of. Hingston v. Montgomery, 121 Mo. App. 451; Slattery v. Trans. Co., 91 Mo. 217; Hannerty v. Theater Co., 109 Mo. 297; Hawes v. Oakland, 104 U. S. 450; 10 Cyc. 965; Yogeler v. Punch, 205 Mo. 576. (4) Jurisdiction once acquired will be retained to give complete relief. The action, being one in personam, must be brought where defendant directors reside; and they may be compelled to deed back foreign real estate misappropriated by them. Courts of equity have the right to operate on persons within their jurisdiction, even though the acts involved relate to lands outside of their jurisdiction. State ex rel. v. Muench, 225 Mo. 210; State ex rel. v. Dearing, 180 Mo. 53; State ex rel. v. Zachritz, 166 Mo. 309, 313; Olney v. Eaton, 66 Mo. 563; .Castleman v. Castleman, 184 Mo. 438; McCune v. Goodwillie, 204 Mo. 336; Hewitt v. Price, 204 Mo. 31; State ex rel. v. Grimm, 243 Mo. 676; State ex rel. v. Homer, 164 Mo. App. 334. (5) In stockholders’ suits to establish a right of the corporation against directors for fraud, equity has power to appoint a local receiver of property of a foreign corporation within the State; this, power is incidental to the particular litigation and is exercised to preserve assets belonging to the corporation within the forum from unlawful disposition or injury pending suit. 34 Cyc. 99; 19 Cyc. 1239, note 69.
   PARIS, J.

— This is an original proceeding in prohibition, which was filed-here on the 19th day of August, 1913, and our preliminary rule to show cause issued on that day. Relators are six out of sixteen defendants, in a certain alleged action in equity for an accounting, for the appointing of a receiver for such of said defendants as are corporations, and for other purposes and uses hereinafter more specifically set out. This action in equity is now pending in the circuit court of the city of St. Louis, in Division 6 thereof, which division is presided over by respondent, Judge Eugene McQuillin. Definitely as to when this equity suit was filed, does not appear, except by inference that it was on, or subsequent to, August 5, 1913, and prior to August 12, 1913. It does appear that it was made returnable to the October term, 1913, of said court. Relators in their petition filed here for their writ, set out their own descriptions and their several relations to this action and to the said equity suit, thus:

“Come the relators herein, Bert P. Penn, the Continental Commercial Company, a. corporation organized under the laws of the State of Maine; August J. Waldschmidt, Adolph P. Erker, The American-Mexican Sugar Company and Walter C. Duels, and give the court to understand and be informed that Eugene McQuillin is one of the judges of the circuit court of the city of St. Louis, Missouri, duly elected, qualified and acting, and presiding in Division No. 6'of said court; that J. Hugo Grimm is one of the judges of the ■circuit court of the city of St. Louis, Missouri, duly elected, qualified and acting and presiding in Division No. 1 of said court, but sitting in Division No. 6 of •said court during the absence of Eugene McQuillin; that said Eugene McQuillin and J. Hugo -Grimm, sitting in said Division No. 6 of said circuit court of the city of St. Louis, Missouri, have taken cognizance of and entertain jurisdiction of a certain cause wherein Henry W. Meyer, Alexander H. Schott, Charles Bilhartz, E. H. Keisker, Jr., D. E. Dirkes, Joseph Lintzenick, B. A. Oehler, J. H. August Meyer, A. IT. Heitkamp, P. C. Compton, H. L. Mintague and Charles Happel are plaintiffs and the relators herein, the Continental Commercial Company, A. J. Waldschmidt, Adolph P. Erker, Charles H. McKee, Bert F. Fenn, Charles P. Ilaanel, William A. Brandenburger, Walter •C. Guels, J. E. Carnahan, Louis Essig, John Doe, trustee, American-Mexican Sugar Company, a corporation; the Jumiapa Plantation Company, a corporation; Continental Sugar Refining Company, a corporation; Oaxaca Coffee Culture Company, a corporation, and the Monte Rosa Company, a corporation, are defendants, said cause being Serial No. 496, October Term, 1913.

“That said plaintiffs in said last-named cause in the circuit court of the city of St. Louis, Missouri, filed their petition in said cause, setting forth that they are stockholders of the Continental Commercial Company, of the defendants named therein, and that relators herein, Waldschmidt, Erker, McKee, Penn, Haanel, Brandenburger, Guels and Carnahan, are officers ■of said Continental Commercial Company and have ■controlled the affairs of said Continental Commercial •Company.”

Since we have set out in the subjoined opinion, the whole of the remainder of relators’ petition, either in the exact words thereof, or in its substance and legal effect, and since all of the facts are to be found in our views as written in the subjoined opinion, we deem it unnecessary to duplicate these facts here.

I. The case has been argued and submitted and is now up for judgment upon two pleadings only. We are compelled to consider first the nature of these pleadings and the issues presented by them, before we reach the question of what the law is upon the ease thus made. The only pleading of whatever sort filed by relators is the petition lodged here upon which we issued our preliminary rule on respondents to show cause why the peremptory writ of prohibition should not be awarded herein. The respondents upon the return day filed on their part a single pleading only, which first demurred to the whole petition, then denied the whole petition, and then answered the whole petition, by revamping and reiterating (as we note by comparison), the charges contained in the petition filed in the court nisi, action upon which latter by the lower court is here sought to be restrained.

While such practice is not to be commended, when we have regard to the several ways of getting at issue upon the law in this sort of case, there is yet authority for holding that we may, ex gratia, seek out any issues made and proceed to determine them upon legal rules and along legal lines. [State ex rel. Conners v. Shelton, 238 Mo. 281.] But the legal rules admonish us that since both a demurrer and an answer, each to the whole of a petition, will not lie at one and the same time, a fortiori, they will not both lie when contained in the same paper and each directed toward the whole of the same petition. [State ex rel. v Bright, 224 Mo. 514.] In the above case on a very similar point it was said:

“A return is in the nature of an answer and a demurrer and answer can’t both stand at the same time, where they both cover the entire case. The rule is well stated in 6 Ency. PI. & Prac., p. 382, thus: £A party may demur to one part of a declaration, petition, cr complaint, and plead or answer to another, but he cannot demur and plead or answer at the same time to the same part of the pleading. There cannot be an issue of law and of fact to the same pleading or part of a pleading at the same time. Thus there cannot be a general demurrer and a plea or answer to the whole declaration or complaint at the same time, nor to the same count, or paragraph, except where the matters therein stated are divisible in their nature, and a part of the count or paragraph is good and a part bad;, where this is the case, defendant may plead to the former and demur to the latter.’ ”

Since respondents urge upon us in their brief the alleged lack of sufficiency of averment in relators’ petition, we assume that they are not abandoning this point. But on the contrary put it to the fore in their brief and continue to urge it on us here. In fact, if this point is not still in the case, there is nothing whatever left in it, and we must in such event, dismiss it out of hand.

If it were not for the apparent laissez faáre attitude of counsel on both sides of this case as to the pleadings, we should dismiss it, as the better practice authorizes us to do when there is nothing before us except the petition and the return (Cariaga v. Dryden, 30 Cal. 307), especially when the latter is, in the main, but a general denial. Since, however, the dereliction is" about equally distributed, we will follow the broad path of examination induced as an act of grace, which is blazed for us in the case of State ex rel. v. Shelton, supra, and consider the case here as a petition for a writ to which respondents demur, for that “the petition and writ do not state facts sufficient te constitute a cause of action against the respondents, or facts sufficient to entitle relators to the relief prayed for, or any relief.”

II. It is so fundamental as not to require reiteration or citation of holdings that a demurrer admits all facts in a pleading, which are well pleaded. With this primary and primer premise conceded, we note upon looking to the petition: That the relators herein are six out of sixteen defendants in the suit below, and that respondents here (except Judge McQuillin and Judge Grimm) are the plaintiffs in the suit below, further action in which is here sought to be restrained; that the petition in said action below avers that respondents herein, except the said circuit judges, are stockholders of the Continental Commercial Company, which latter concern is a defendant in the action below, and that relators Waldsehmidt, Erker, McKee, Fenn and Guels, and Haanel, Brandenburger and Carnahan (the three last mentioned are not relators herein) are officers of the said Continental Commercial Company, and are in control of its offices and affairs. That the petition in the court below has appended thereto the following prayer for relief:

“First. That a decree of injunction issue against defendants McKee, Waldsehmidt, Erker, Fenn, Essig and the American-Mexican Sugar Company, restraining them from any interference with the prop-, erty and assets of the Continental Commercial Company.
“Second. That defendants and the American-Mexican Sugar Company be compelled to reconvey to the Continental Commercial Company certain real estate described in said petition as being located in the Republic of Mexico.
“Third. That a bond issue secured by a mortgage on said real estate located in Mexico be declared void.
“Fourth. That if said bond issue shall be declared valid, then that the defendants account to plaintiffs for such bonds as may have come into their possession.
“Fifth. That an accounting be had between the Continental Commercial Company and the defendants.
“Sixth. That pending the final hearing a receiver be appointed for the Continental Commercial Company, the Jumiapa Plantation Company, the Oaxaca Coffee Culture Company, Continental Sugar Refining Company and the Monte Rosa Company.
‘ ‘ Seventh. That all defendants be ordered to show cause why a receiver should not be appointed for said companies.
“Eighth. For such other and further relief as to the court should seem meet and just.”

The petition of relators herein further avers that the circuit court, through the respondent Judge Mc-Quillin, therein sitting, upon the filing of said petition, issued an order to 'all defendants therein named to show cause on the 12th day of August, 1913, why a receiver should not be appointed as prayed for; that thereafter relators herein (defendants therein) appeared and filed their demurrer averring a defect of parties, in that it appeared in and by said petition that there were over a thousand stockholders interested in the accounting sought who were not made, parties; that there was no equity in the bill, and that the circuit court had no jurisdiction of the subject-matter of the action; that said cause was argued before the circuit court (inferably upon the demurrer, but the pleader does not so state), and that on August 18, 1913, the court refused to pass upon the demurrer of relators, but made an order upon all defendants to shoio cause on August 20, 1913, why a receiver should not be appointed. Elsewhere it appears that pending this order, and pending the service of notice thereof upon the defendants therein (part of whom are, as we say above, relators herein), and on the 19th day of August, 1913, relators came to this court and sued out the preliminary rule in prohibition now here before us.

Relators continue further, and aver that the American-Mexican Sugar Company is not a Missouri corporation (hut do not aver its locus habitationis),, that it does no business in Missouri and has and maintains no office, or agent in this State. Relators also-aver that the said Continental Commercial Company was a corporation under the laws of the State of Maine, but that it was dissolved as a corporation hy a decree rendered in the Supreme Judicial Court of Kennebec County, Maine, on March 31, 1913, and that it does no business in Missouri and has no office or agent in this State. Beyond a profert of a certified exemplification of the record and proceedings in the actionhelow, here sought to be enjoined, and a formal allegation, or deduction from the facts alleged, of an excess of jurisdiction and a prayer for relief, this is all there is to be found in the petition for the writ.

"We may concede as a basis for the views • herein, that the office of the writ of prohibition is to prevent inferior courts from usurping judicial authority (Sec. 2622, R. S. 1909; Kalbfell v. Wood, 193 Mo. 675),. which includes- both the assuming of jurisdiction in cases where they have none, and exceeding their jurisdiction in cases wherein they have cognizance. [State ex rel. v. Fort, 210 Mo. 512.] In the case last cited, State ex rel. v. Fort, supra, the general rule which, defines when jurisdiction in prohibition will attach and under what limitations of judicial discretion it will be-assumed and exercised, is thus stated:

“It cannot be doubted that (subject to a judicial discretion to be exercised in issuing all discretionary writs) the writ of prohibition may go to confine a court within the limits of its jurisdiction whether such court has no jurisdiction at all or is exercising powers-in excess of its rightful jurisdiction. So much is elementary. The writ may go whenever judicial functions-are assumed, not rightfully belonging to the person or court assuming them. Generally speaking, it is available to keep a court within the limits of its power in any particular matter as well as to prevent the excess of jurisdiction in a cause not given to it by law. [State ex rel. v. Foster, Judge, 187 Mo. 590; State ex rel. v. Elkin et al., County Judges, 130 Mo. 90; State ex rel. v. Eby, Judge, 170 Mo. 497; State ex rel. v. Bradley, Judge, 193 Mo. 33; State ex rel. v. Fort, Judge, 178 Mo. 518.]”

Three of the grounds set out in the petition as a reason why the writ of prohibition should go were: (a) That there are over one thousand stockholders of the relator Continental Commercial Company of whom only some twelve (the respondents here, except Judge-G-rimm and Judge McQuillin), are made parties in the action below (which action we pause here and name for brevity, the “equity suit”); that (b) the bill in the equity suit exhibited no equity, and (c) that the court had no jurisdiction of the subject-matter of the litigation.

Each and every of these matters are defects for which by statute (Sec. 1800', R. S. 1909) a demurrer will lie. The fact that a demurrer will lie to a petition • in a case where the court has jurisdiction of the general class of cases to which the particular case attacked belongs, is no ground for the issuance of a writ of prohibition. [State ex rel. Fenn v. Riley, 127 Mo. App. 469; State ex rel. v. Stobie, 194 Mo. 14.] We are not saying that if it properly appeared that the circuit court had, overruled a demurrer urging lack of jurisdiction in a case where the lack of jurisdiction was apparent, relief would be refused by way of the writ of prohibition. For the overruling of a demurrer and the continuing to exercise jurisdiction in such •case would bring the court squarely within the purview of the conditions wherein prohibition always lies. [Kalbfell v. Wood, supra; State ex rel. v. Denton, 229 Mo. 187.] But here the court has not ruled on the demurrer, and had not so ruled when the preliminary rule herein was sued out. It is true that the petition avers that “the court refused to pass upon said demurrer and ordered all defendants to show cause on August 20, 1913, why a receiver should not he appointed.” In passing, it may be said that the record does not show any order made by the court in any wise referring to the demurrer. If the learned circuit-judge had ruled adversely on the demurrer before this case was begun here, and if in a proper case where the petition below was before us, we had from an examination of it found no jurisdiction in the court nisi to hear and determine the cause set out therein, and had found that no amendment could be made by which jurisdiction could be conferred; then we would not hesitate to make the preliminary writ herein permanent. [State ex rel. v. Denton, 229 Mo. 187.] But Judge McQuillin had not ruled at all; taking his action or inaction, in the exact way it is pleaded, he had simply refused to pass upon the demurrer in any way. He neither sustained it nor overruled it at the time. Before prohibition will lie on the ground of lack of jurisdiction, the court below must have so ruled as to make manifest a claim of jurisdiction. [State ex rel. v. Judges, 37 La. Ann. 845; Chester v. Colby, 52 Cal. 516.] For aught which appears to the contrary from the record, when we look at it in the light of the law, Judge McQuillin (if this proceeding had not intervened to prevent) would or might have passed upon the demurrer at the October term, 1913, to which term the equity suit was brought and made returnable. We judicially notice the several dates upon which the return terms of the circuit court of the city of St. Louis begin (Sec. 4150, R. S. 1909), but we cannot notice when a given term ends, except when the rear end of one term runs into the front end of the succeeding term. From the fact that Judge Grimm was sitting for Judge McQuillin for a time in the history of this case, we infer that Judge McQuillin’s division was in vacation. [Sec. 4157, R. S. 1909.] In fact the order to show cause affirmatively shows that all of these things transpired in vacation. As stated, the equity suit was returnable on the first Monday in October, 1913. The demurrer was filed at an indefinite date prior to August 18, and subsequent to August 12, 1913, in an action neither returnable nor triable for some six weeks thereafter. Our statutes which provide the time for pleading, which includes demurrers (Secs. 1799, 4162, R. S. 1909), and the time at which a demurrer shall be determined, do not, when construed together, make it obligatory upon a court or judge either to hear and pass upon a demurrer in vacation, or to hear or pass upon it till the return term of the cause in which and to which it is filed sháll have come around. [Sec. 1805, R. S. 1909.]

We need not take up time to cite additional authorities that ordinarily the mere fact that a demurrer which ought to be sustained, is on the contrary over^ ruled by a trial court, gives us no jurisdiction to overrule the trial court by the writ of prohibition. If this were the case the writ of prohibition would serve both in civil and criminal cases in lieu of an application for a continuance, and practically all criminal cases and many civil ones would be halted indefinitely till this court could say whether or not the indictment contains a proper and legal charge, or whether the petition in a civil case is good. We note above the exception to the ordinary rule.

III. Nor are relators in any better case upon the point that the court was threatening to appoint a receiver. This order to show cause on August 20, 1913, why a receiver should not be appointed, was made on August 18,1913; notice of said order was in the meantime sought to be given to relators (or to some of them)-, but on August 19, 1913, the day between these dates, before tbe day of showing cause came around and before the court was ever advised as to whether the notice to show cause was served upon relators or any of them, the writ herein was sued out. Manifestly, we cannot forecast what action would have been taken by the learned court nisi. We must presume that he knew the law and that he would follow it. He was not given the chance here to demonstrate the one fact or to perform the other. He had the authority in a proper case to appoint a receiver in vacation (Sec. 2018, R. S. 1909), and in cases of crying need to so appoint without notice (Tuttle v. Blow, 176 Mo. l. c. 171); certainly, he can so appoint for such a period as will suffice for the appearance of the adverse party and the making of a showing of cause against the continuation of such receivership. [State ex rel. v. Wear, 135 Mo. 230.] If then, under the facts in the instant- case, Judge McQuillin had appointed a receiver on the 18th day of August, 1913, we would have, pending the date fixed for a hearing, touching his action in that behalf no ground to interfere. When this action was begun here, the sheriff had made no non est returns showing lack of service either of the summons in the equity case or of the notices to show cause. No returns upon process were before Judge McQuillin, therefore, when he did the things complained of herein. If the sheriff had made any such non est returns up to the time of commencing the instant action, such returns would not have been lawful because premature. [Williams v. Sands, 251 Mo. 147.]

IV. We might, if under the law it were our duty so to do, go into the petition filed below in the equity case and ascertain and here adjudge whether it states any or sufficient facts to justify the lower court in granting any of the seven different varieties of relief prayed for, or any relief of any kind grantable by a court of equity, under the eighth or general prayer of the petition. But under the condition of the pleadings before us, the petition in the equity case is not a part of the petition filed here for our preliminary rule in prohibition, when the latter petition is attacked by a demurrer as in the concrete case before us. The general rule is that an exhibit attached to a petition is not so far a part of the petition itself as to save the petition from being bad on demurrer, even though if the petition were aided, or eked out by the contents of the exhibit, it would be thus rendered good on demurrer', instead of bad (Pomeroy v. Fullerton, 113 Mo. 440; Hanks v. Hanks, 218 Mo. 670; Hubbard v. Slavens, 218 Mo. 598; Keator v. Helfenstein Park Realty Co., 231 Mo. 676); and this is true, even though the petition states that the exhibit is made a part of the petition. [Pullis v. Somerville, 218 Mo. 624; Robinson v. Levy, 217 Mo. 498; Kern v. Ins. Co., 40 Mo. l. c. 25; State to use v. Samuels, 28 Mo. App. l. c. 653; Hanks v. Hanks, supra.] Our statute governing the practice and procedure in prohibition, passed in 1895, provides that “the proceedings . . . shall otherwise conform as nearly as practicable, to the code of civil practice, except as otherwise specially provided in this article.” [Sec. 2624, R. S. 1909.]

It may well be, and it is our opinion, that under the broad power conferred upon us by section 2630; Revised Statutes 1909, of directing “the form of such further details of procedure as may be necessary to the orderly course of the case,” we have the power left in us to say, in consonance with the general rules of law and without doing violence thereto, that an exhibit merely affixed physically to the petition and referred to in the petition as filed therewith, may be considered as a part of the petition upon demurrer, or for any other purpose. But we cannot conceive of the existence of any necessity for so complicating the practice. Why should not the general well-settled rule as to the status of such exhibits apply? It is surely easier to remember one rule than it is to remember two rules. Nor is the case of State ex rel. v. Guthrie, 245 Mo. l. c. 151, in conflict with this view. There the exhibits were neither filed with, nor copied into, nor made a part of the petition. While the learned jurist who wrote the opinion said arguendo-. “If relators were relying upon such matters as constitutive of their cause of action they should have been made a part of their petition or have been attached thereto as exhibits;” yet in the setting the last clause was merely obiter in a sense, because dealing with a theory and not a condition.

Unless such an exhibit to a petition for prohibition becomes a part of the petition in the same manner as an exhibit is made an integral part of a pleading in an ordinary suit, we will not regard it as a part thereof here for the purpose of aider against demurrer. There is no reason why, when we have regard to the fact that the number of original writs we issue and consider is increasing by leaps and bounds, we should step aside from the well-known beaten paths of prac-‘ tice to make, in a prohibition case, an unnecessary exception to the general rule, which exception so far from expediting business will but impede, delay and hinder. If we spend weeks trying to pick out the issues from a commingled mass of void and formless matter which has gathered volume as it rolled up to us, we are thereby delaying others, who by diligence have earned a speedy hearing.

Holding these views, we are of the opinion that the demurrer of respondents to the petition of the relators should be sustained; which results in the conclusion that our preliminary rule in prohibition, having been improvidently granted, should be discharged and the peremptory writ denied. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. UNION ELECTRIC LIGHT & POWER COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    April 2, 1914.
    1. MANDAMUS: Practice: Demurrer to Petition: Issues of Fact. A return in the nature of a demurrer to the alternative writ in mandamus admits the facts pleaded in the application for the writ. Likewise, if the quo wwrrmio case in the trial court went off on demurrer, the facts pleaded in the petition therein were thereby admitted; and if that petition is incorporated in defendant’s application for the writ of mandamus to compel the transfer of the case from the Court of Appeals to the Supreme Court and the return is in the nature of a demurrer, the facts pleaded in that petition are admitted.
    2. APPELLATE JURISDICTION: Amount in Dispute: Uncontra'dicted Affidavit Filed in Court of Appeals. As to “the amount in dispute” the record coming from the trial court must show the appellate jurisdiction or the facts from which such jurisdiction may be determined. The jurisdiction of the Court of Appeals cannot be ousted by an uncontradicted affidavit filed therein, either before or after it has rendered judgment, stating that “the financial loss that will necessarily result to defendant by such judgment and action will be greatly in excess of ten thousand dollars, exclusive of costs.”
    3. -: -Quo Warranto to Oust Corporation of Franchises. Where the pleadings admit that the object and purpose of the quo loammto case, brought in the name of the State upon the information of the circuit attorney, are to oust of its franchises and corporate life a corporation having capital stock of ten million dollars, that said corporation at the time said proceeding was brought supplied ninety-five per cent of the electric light to the greatest city in the State, and that it has a virtual monopoly of selling electricity to the public in said city, “the amount in dispute” exceeds seventy-five hundred dollars, and the Supreme Court has jurisdiction of the appeal from a judgment of ouster entered in the circuit court. In such case the test is the loss in money to defendant should said judgment be sustained.
    Mandamus.

      Writ allowed.

      Boyle <& Priest, Schmirmacher & Rassiew and T. E. Francis for relator.
    (1) The matter in controversy exceeds the jurisdiction of the St. Louis Court of Appeals. McCoy v. Randall, 222 Mo. 24; Gartside v. Gartside, 42 Mo. App. 513; Eire Brick Co. v. Smelting Co., 48 Mo. App. 634; Overall v. Traction Co., 88 Mo. App. 175. (2) The State itself being relator herein, this court, and not the Court of Appeals, has jurisdiction. Constitution, art. 6, sec. 12. (3) On the oral argument, it was stated by counsel for respondents that this case was here before on an application for mandamus against the circuit court (see State ex rel. Union El. L. & P. Co. v. Grimm, 220 Mo. 483), and the files and records of this court, of which this court will, of course, take notice, confirm this statement. This court, therefore, having in such proceeding made a “decision or ruling” in a ease still “pending” has exclusive appellate jurisdiction. R. S. 1909, sec. 3937, as amended by Laws 1911, p. 190; Curtis v. Sexton, 252 Mo. 221; Patent Door Co. v. Fuelle, 215 Mo. 421,

      Thomas B. Harvey and R. P. Spencer for respondents.
    (1) There is no “amount in dispute.” (a) The matter in controversy is not susceptible of a monetary value. Schuerichs v. Light Co., 183 Mo. 497; Moffat v. Board of Trade, 203 Mo. 277. (b) The information, a demurrer to which was sustained, discloses no amount in dispute. Wilson v. Drainage Disk, 237 Mo. 39; Ferguson v. Comfort, 159 Mo. App. 32. (c) The -case, as presented by the papers in the trial court, in no manner discloses facts which would bring this ac•tion within the appellate jurisdiction of the Supreme Court. Cherry v. Cherry, 150 Mo. App. 418; State ex rel. v. Gill, 107 Mo. 44. (d) Relator endeavors to bring an amount in dispute in tbe case by affidavit in tbe Court of Appeals after tbe record in tbe court of first instance is complete and certified to. This is not permissible. Tobacco Co. v. Rombauer, 113 Mo. 435. (e) It cannot be affirmatively determined from the record what the amount is, and therefore the Supreme Court does not have jurisdiction of the appeal. Kitchell v. Railroad, 146 Mo. 455; Scheurich v. Light Co., 183 Mo. 499. (f) The “amount in dispute” cannot be a contingent loss or damage. Ross v. Prentiss, 44 U. S. 771; Wallach v. Rudolph, 30 S. Ct. 587. The Court of Appeals has appellate jurisdiction of quo warranto proceedings wherein the State itself sues on information filed by the proper officer. State ex rel. v. Jenkins, 25 Mo. App. 484; State ex rel. v. Small, 131 Mo. App. 470; State ex rel. v. Gravel Road, 37 Mo. App. 496; State ex rel. v. Bacon Club, 44 Mo. App. 86; State ex rel. v. Modern Horseshoe Club, 167 Mo. App. 644. (3) The amendment to Sec. 3937, R. S. 1909, approved March 30, 1911, Laws 1911, p. 190, has no bearing on this case. That is meant to apply to a case that has been before this court upon a formal appeal, and in which, upon such formal appeal, this court has made any decision or ruling. Curtis v. Sexton, 252 Mo. 221.
   GRAVES, J.

— This is an original proceeding in mandamus by which it is sought to compel the Judg’es of the St. Louis Court of Appeals to transfer the case of “State of Missouri ex informatione Arthur N.Sager, Circuit Attorney, Informant, Appellant, v. Union Electric Light and Power Company, Respondent,” an action in quo warranto, to this court. Upon application our alternative writ of mandamus was issued, to which return has been duly made by the Judges of the Court of Appeals, in the nature of a de-. murrer. Such return reads:

“Now come the respondents in the above entitled canse and for answer and return to said writ, demur to the petition and writ of the petitioner, and assign the following causes of demurrer, to-wit:
“1. Said petition and alternative writ and the matters and things therein as stated and set forth are not sufficient in law or equity to entitle the plaintiff to the relief asked for in said petition, or to authorize tbe issuing of said writ of mandamus.
“2. The record in the trial court of the cause of the State of Missouri ex informatione Arthur N. Sager, Circuit Attorney of the city of St. Louis, Appellant, v. Union Electric Light and Power Company, which the petitioner seeks to have transferred to the Supreme Court of Missouri, does not in any manner disclose such facts as would bring such action within the appellate jurisdiction of the Supreme Court, but said record does disclose such facts as would bring said cause within the appellate jurisdiction of the St. Louis Court of Appeals.
“3. There is no ‘amount in dispute’ and the State merely asks a judgment forfeiting the franchise or right of being a corporation, and the matter in dispute is not susceptible of a monetary valuation, there being nothing properly before the court from or by which any test of money value might be applied.
“A The petitioner bases his prayer for relief, not upon the record in the trial court, but upon an affidavit made by one of its officers and filed after the appeal had been taken and the St. Louis Court of Appeals had acquired appellate jurisdiction of the cause.
“5. This case does not involve the construction of the Constitution of the United States or of this State; nor the validity of a treaty or statute of or an authority exercised under the United States; nor the construction of the revenue laws of this State; nor the title to any office in this State; nor title to real estate; nor is the county or other-political subdivision of - the State or any State officer a party to the suit within the meaning of the State Constitution.”

The case is submitted here upon the pleadings. As the return is in the nature of a demurrer, thereby admitting the facts pleaded in the application for our writ, it will become necessary to detail some of those facts, but this will be done in connection with the points made. Relator in this court makes these points: (1) That the matter in controversy exceeds the jurisdiction of the Court of Appeals; (2) that the State of Missouri being the real party in interest in the quo warranto proceeding, the jurisdiction on appeal is in this court and not the Court of Appeals; and (3) it urged that this case was in this court before (State ex rel. v. Grimm, 220 Mo. 483) and that we made a ruling therein, and that for such reason, the appellate jurisdiction is here under the Act of 1911, Laws 1911, p. 190. Upon these several questions the case is briefed and submitted. This fairly outlines the controversy except as to details.

I. It is urged that the amount involved brings the jurisdiction of the quo warranto case, upon appeal, to this court. This calls for a little fuller statement of facts. In the circuit court the quo warranto case went off on demurrer. The facts in the petition were admitted by the de- .... murrer. That petition is incorporated ^ an(j ma¿e a part of the petition for mandamus here. The facts of relator’s petition for mandamus stand admitted in the instant case, because the respondents’ return is in its nature a demurrer. The plaintiff in the quo warranto case seeks to oust the respondent of its corporate charter and thereby its right to do business in this State. In the quo warraoito petition it is charged that the capital stock of the respondent in that case (the relator in the case at bar) is $10,000,000. It is also charged in that petition that the respondent in that case (relator here) “has a virtual monopoly of the business of furnishing, distributing and selling electricity to the public of the city of St. Louis, having control of at least ninety-five per cent of said business,” etc. In addition to what appears from that petition, when the quo warranto case reached the St. Louis Court of Appeals, the respondent therein (the relator herein) filed its motion to transfer to this court, alleging among other things that more than $7500 was involved, and with said motion filed the following affidavit:

State of Missouri, City of St. Louis, ss.
A. C. Einstein, being duly sworn, makes oatk and says tbat he is the First Vice President and General Manager of the Union Electric Light and Power Company, the respondent in the above entitled cause, and is entirely familiar with its business and affairs; that if a writ of ouster should be granted against said Union Electric Light and Power Company, excluding it from all corporate rights and privileges under the laws of this State and forfeiting its franchise rights, authority, license and certificate to do business under the laws of this State, and ousting it from its corporate franchise privileges, license and authority to do business under the laws of this State, as prayed by the appellant, the financial loss which will necessarily result to respondent from such judgment and action will be greatly in excess of ten thousand dollars, exclusive of the costs of this proceeding, A. C. Einstein.
Subscribed and sworn to before me this 21st day of December, 1912. My commission expires Dec. 22nd, 1914.
Theodore S. Heinz,
Notary Public, City of St. Louis, Mo.

From the petition for mandamus it appears that this motion was overruled, although the affidavit aforesaid was not controverted. The record here showing the facts above detailed relator contends that our permanent writ should go. We think as does relator, for reasons to be assigned in the succeeding paragraphs.

II. It is urged by the respondent here that we can not consider this affidavit, undisputed as it is. In Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo. App. 636, an undisputed affidavit seems to have been recognized by that court. In that case it is said:

‘ ‘ The defendant, as its name indicates, is a smelter and refiner of ores. It uses this switch for hauling the ores that it treats. There was evidence tending to show that the use of this switch was of great importance to the defendant in its business, which was very extensive; that defendant’s output averaged from $200,000 to $300,000 a month in silver and from $7000 to $8000 per day in lead. The evidence therefore fairly warrants the conclusion that the deprivation of the use of this switch would subject this defendant to a financial loss greatly in excess of twenty-five hundred dollars. In addition, the defendant has filed an affidavit, which is not controverted, showing the financial loss necessarily resulting to it, in case it is deprived of the use of this switch, would be greatly in excess of twenty-five hundred dollars. Following our ruling in the case between the same parties, ante, page 634, and in the case of Gartside v. Gartside, 42 Mo. App. 513, we deem it our duty to transfer this appeal to the Supreme Court on the ground that the amount in dispute therein, exclusive of costs, exceeds twenty-five hundred dollars.”

But in Addison Tinsley Tobacco Co. v. Rombauer, 113 Mo. l. c. 439, this court, through Barclay, J., said:

“Where the court to which an appeal should go is to be ascertained, under the Constitution (Constitution 1875, art. 6, sec. 12), by the ‘amount in dispute’ in a given case, the proceedings therein in the trial court should disclose the facts on which the appeal is to proceed. On the state of the record in the court of first instance depends the question as to which one of the two courts of appeal, the Supreme or the appellate court, should have jurisdiction. Hence parties must see to it in the trial court that the full showing they wish to rely upon in that regard in the future course of the case, is made. The first division of the Supreme Court so held in State ex rel. v. Grill, 107 Mo. 44, and that ruling is decisive of the case at bar.
“Here the first attempt at a showing that the amount involved exceeded $2500 was presented by affidavits in the St. Louis Court of Appeals, after a judgment had been entered there. That showing it appears to me was entirely too late to attach the jurisdiction .of the Supreme Court to the judgment of the circuit court for the purposes of review under the Constitution.
“It is not claimed nor does the record show that the judgment of the Court of Appeals reaches or decides any other or larger issues, than those involved in the cause in its earlier stages.”

It is true that the case at bar differs from that case in the fact that the jurisdiction of the Court of Appeals in the instant case was challenged before a consideration and judgment, whilst in the Rombauer case the affidavits were filed after the court had entered its judgment. This, however, we do not think changes the situation. The question is whether the record coming from the trial court must show the jurisdiction, or facts from which the jurisdiction may be determined, or can such facts be brought in later by affidavit? "We think the record coming from the trial' court should disclose the facts, as was held in the Rombauer case, supra. The case at bar should be determined without the consideration of this affidavit. It would be a dangerous practice to have jurisdiction shifted from one court to another on mere affidavit. Nor would it look well to have appellate courts determine their jurisdiction of a cause from affidavits and counter affidavits, after the record from the court nisi had been made up and filed.

III. But the exclusion of this affidavit from consideration does not debar the relator from our perma- ' nent writ of mandamus. There is enough upon the face of the petition in the quo warranto case to demonstrate that the jurisdiction upon appeal is here rather than in the Court of Appeals. The petition in the quo warrcmto case shows that its object and purpose is to take the very life of a $10,000,000 corporation. Not only so, but it further shows that said corporation was at the time furnishing ninety-five per cent of the electric light to the greatest metropolitan city of our State. Under the law, Revised Statutes 1909, section 2976, the incorporation fee alone for such a corporation would be $5025. It is clear that the rights to be lost by the corporation in the event the State were successful in its quo warranto suit would vastly exceed in dollars and cents the pecuniary jurisdictional limit of the St. Louis Court of Appeals. If from the whole record the amount in dispute, or the monetary value of the right lost, is within' the jurisdiction of this court, then the appeal lies here rather than elsewhere. [Vanderberg v. Gas Co., 199 Mo. 455; McCoy v. Randall, 222 Mo. 24; Clothing Co. v. Watson, 168 Mo. l. c. 143.]

In the later case it is said, “The test is the value in money of the relief afforded plaintiff should the relief prayed for be granted, or vice versa, should the relief be denied. [Evens & Howard Fire Brick Co. v. St. Louis Smelting & Ref. Co., 48 Mo. App. 634; Gast Bank Note & L. Co. v. Assn., 147 Mo. 557.] ”

It will be observed that in the Watson case, supra, we cite with approval the case of Evens & Howard Fire Brick Co. v. St. Louis Smelting & Ref. Co., 48 Mo. App. 634. In that case the Court of Appeals, in getting at the rule for determining jurisdiction, said:

“It is settled that, where the right of appeal depends on the value of the matter in dispute, such value must he estimated in money. When the object of the suit, however, is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied. If either is necessarily in excess of the sum within the appellate jurisdiction of this court, then the Supreme Court has exclusive cognizance of the appeal. We took this view in the case of Gartside v. Gartside, 42 Mo. App. 513, in transferring that case to the Supreme Court, and that court, in refusing to remand the cause to us upon a motion made to that effect, affirmed our holding. ’ ’

At the same term of the court the St. Louis Court of Appeals had another case in which the same corporation was plaintiff, and the same corporation was defendant, but in which the Missouri Pacific Railway Company was an additional defendant. [48 Mo. App. 636.] That case was likewise certified to this court. Rombatjer, P. J., in determining the pecuniary value of the right involved, said:

“The defendant, as its name indicates, is a smelter and refiner of ores. It uses this switch for hauling the ores that it treats. There was evidence tending to show that the use of this switch was of great importance to the defendant in its business, which was very extentive; that defendant’s output averaged from $200,000 to $300,000 a month in silver, and from $7000 to $8000 a day in lead. The evidence, therefore, fairly warrants the conclusion that the deprivation of the use of this switch would subject' this defendant to a financial loss greatly in excess of $2500.”

This case shows the course of reasoning used by the courts in determining the money value of the right involved. In Gartside v. Gartside, 42 Mo. App. 513, we have a suit to remove a person as trustee of an estate. The value of the estate was alleged to be $600,000 in personal property and $200,000 in realty. In this case, Rombajjer., P. J., says:

“The question first to be decided is, whether the amount in dispute, exclusive of costs, exceeds twenty-five hundred dollars, so as to confer exclusive jurisdiction of the appeal on the Supreme Court. We find no analogous case in this State, and cases decided by the Supreme Court of the United States do not leave the question entirely free from doubt. We assume it is settled beyond controversy that, where the right of appeal depends' on the value of .the matter in dispute, such value must be estimated in money. [Barry v. Mercein, 5 How. 103; Pratt v. Pitzhugh, 1 Black. 271; Lee v. Lee, 8 Pet. 44; Elgin v. Marshall, 106 U. S. 578.] But it does not follow that an appellate court only has jurisdiction, if the recovery of money or property, in excess of the jurisdictional limit, is the immediate object of the suit. Thus it was held that, in a suit to establish a right to an office, the aggregate amount of the salary for the unexpired term claimed by the adverse party is the value of the matter in dispute. [Smith v. Whitney, 116 U. S. 167; United States ex rel. v. Addison, 22 How. 174.] Also, that, in a suit for an injunction, the value of the object sought to be gained by the bill, and not the amount of the plaintiff’s damages, is the value of the matter in dispute. [Market Co. v. Hoffman, 101 U. S. 112.] Also, that, where equitable and legal considerations are involved in the cause, and the effect of the judgment is to adjust the title to land of much value, the Supreme Court of the United States has appellate jurisdiction, although the amount in immediate dispute is less than a sum sufficient to give that court jurisdiction. [Stinson v. Dousman, 20 How. 461.]
“In the case at bar the record fails to show what value, if any, attaches to the defendant’s position as trusteee, but it does appear that the duration of that office, if it may be so called, is for life, and invests him, as far as these plaintiffs are concerned, with the partial control of property of the value of two hundred thousand dollars or more, of which he is to be deprived by this proceeding, and we are not prepared to say, unconditionally, that this is a case where the amount in dispute does not exceed twenty-five hundred dollars.
‘ ‘ Our uniform practice has been to order the transfer to the Supreme Court of all causes wherein any reasonable doubt exists touching our jurisdiction. This enables the parties to have the question of jurisdiction set finally at rest in the particular case by filing a motion to remand, and obtaining the views of the Supreme Court on such motion.”

This G-artside case reached this court, and upon motion filed to remand, this court refused to remand, and in so doing accepted the rule adopted by Judge Rombauer.. [Vide 48 Mo. App. l. c. 635, supra.]

So we say in the case at bar, the allegations in the petition show that the monetary value of the right involved, i. e., the life or death of a $10,000,000 corporation, doing ninety-five per cent of the private lighting of the greatest city of the State, is such as to give this court appellate jurisdiction of the case.

Other questions raised become immaterial. Our permanent or absolute writ of mandamus should go. It is so ordered.

All concur.


author: FARIS, J.

text:
    THE STATE ex rel. JOHN G. PAXTON v. JULES EDGAR GUINOTTE, Judge of Probate Court.
    In Banc,
    April 2, 1914.
    . 1. LUNACY INQUIRY: Dismissal. A proceeding in the probate court in its nature under the statute a lunacy inquiry cannot be dismissed at will by him who brings it. The petitioner does not have such absolute control of the proceeding that, regardless of the objections of the person whose sanity is under inquiry and of the discretion of the probate court, he can dismiss it at any stage of the proceedings upon the payment of the costs accrued.

      2. -: -: Civil Action: Adversary. A lunacy inquiry is a civil action and is adversary, as contradistinguished from an ex parte proceeding; but the real parties are the public at large and the person whose sanity is in question. But the fact that it is a civil action and adversary, does not mean that it can be dismissed at the will of the petitioner over the objection of such person. The interest of the petitioner is but negligible and utterly subordinate to that of the public and to that of tbe person under inquiry, and the proceeding should not be dismissed without the consent of the probate court acting in its discretion for the best interest of the public and the person alleged to be of unsound mind, and such consent should not usually be given over the objection of such person.
    Certiorari.
    Writ quashed.

      Cowherd, Ingraham, Durham S Morse and Claris & Houts for relator.
    (1) A plaintiff may dismiss any suit pending in a conrt of record at any time before it is finally submitted to tbe conrt or jury. R. S. 1909, secs. 1979-1980'; Houston v. Thompson, 87 Mo. App. 63. The rule in will contest cases is- not applicable to other cases. Benoist v. Murrin, 48 M|o. 48; Hughes v. Burris, 85 Mo. 660; Norton v. Paxton, 110 Mo. 456. (2) An insanity proceeding is a “suit” within the meaning of the statutes providing for dismissal and non-suit. R. S. 1909, secs. 480', 481, 529, 1727, 1756-, 3845; Acker le v. Wood, 95 Mo. App. 378; Clinton v. Clinton, 223' Mo. 371; State ex rel. v. Dickman, 157 S. W. 1012; State ex rel. v. Holtcamp, 235 Mo. 232; State ex rel. v, Montgomery, 160 Mo. App. 724; Dougherty v. Snyder, 97 Mo. App. 495; Morris v. Morris, 128 Mo. App. 673; Berry v. Berry, 147 Ind. 176; Hunt v. Searcy, 167 Mo; 158. Cases denying the right of appeal are not in point. State ex rel. v. Dickman, 157 S. W. 1012; State ex rel. v. McQuillin, 246' Mo. 586. (3) The informant is the “plaintiff” and has the right to dismiss under the statutes. Secs. 481, 1727, R. S'. 1909; 6 Words and Phrases, 5397; cases supra.

      Rozzelle, Vineyard & Thacher for respondent.
    (1) Relator’s contention that because he gave the information which satisfied the court that the facts should be inquired into by a jury, he had the absolute right to dismiss the inquiry and that when he filed his application asking that the inquiry be dismissed, the court lost its jurisdiction, is based on the section of the Code of Civil Procedure in circuit courts, which is:
    “Section 1980. The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury or to the court, and not afterwards.-” Respondent contends that the probate court had jurisdiction of the subject-matter and of the person, and that the application of relator for leave to withdraw the information given by him to the court and for a dismissal of the proceedings did not oust the court of the jurisdiction it was exercising on behalf of the alleged unfortunate and the public. State ex rel. v. Hinds, 148 Mo. App. 305; Allen v. Dodson, 39' Kan. 220; SmithPraser Y. & S. Co. v. D'erse, 41 Kan. 150; Noys v. Derse, .41' Kan. 153; Bond v.-White, 24 Kan. 306; Wilder v. Boynton, 63 Barb. 547; Young v. Bush, 36 How. Pr. 242; Adger v. Prindle, 11 S. C. 527; State v. Wear, 145 Mo. 205. Respondent further contends that section 1980 of the Code of Civil Procedure does not apply to sanity inquests in probate courts and where the probate court has jurisdiction over the subject-matter and of the person of an alleged idiot, lunatic or person of unsound mind and has ordered the facts to, be inquired into by a jury as provided by statute, a request of the informer or other person that the inquiry be dismissed does not operate to dismiss the proceeding and that the dismissal rests in the sound discretion of the court and the request should not be granted without good cause of objection is made. (2) The necessity as well as the duty of the state to protect the estates of incompetent persons and to guard incompetents against harm to themselves and the public is a sovereign power which in England.the King as parens patriae exercised through the lord chancellor by virtue of a standing warrant under the king’s Sign-Manual and wholly distinct from his chancery jurisdiction under the Great Seal. Buswell on Insanity, secs. '28, 29; Ex parte Grimstone, Amb. 206; Buford v. Lenthall, 2 Atk. 551; In re Fitzgerald, LI. & Gt. PL 20', 2 Sch. & Lef. 432; In the Matter of Heli, 3 Atk. 635; Oakley v. Long, 29 Tenn. 254. The adjudicated cases hold that the conduct of sanity inquiries in the United States is not derived from the common law nor the equity branch of chancery practice. This is also evidenced by the fact that the Federal courts have no such jurisdiction. Fontain v. Ravenel, 17 How. 391; Hoodley v. Chase, 126 Fed. 818; 129 Fed. 1005. It has also been held that the duty of caring for the persons and property of insane persons being in the states, the power to hold inquests and care for the person and property of insane persons should be assumed by courts having equity powers wherever the constitution or statutes did not make provision for such inquests, but that this power was assumed on grounds of public policy and ex necessitate and not as a branch of equity jurisdiction. Buswell on Insanity, sec. 29; Yeomans v. Williaras,. 117 Ga. 800. (3) Probate court procedure in sanity inquests is a complete statutory code within itself and is not governed by the general code of civil procedure. Young v. Boordman, 97 Mo. 190; Oox v. Osage County, 103 Mo. 389; Bradley v. Woener, 46 Mo. App. 371; Morris v. Lane, 44 Mo. App. 1; Galbreath v. Black, 89 Ind. 300; Ruhlman v. Ruhlman, 110 Ind. 314; In re Murtaugh, 102 N. Y. Supp. 177; Benoist v. Murrin, 48 Mo. 48; Bradford v. Blossom, 207 Mo..228; Cash v. Lust, 142 Mo. 637; McMahon v. McMahon, 100 Mo. 99. A proceeding to determine whether a person is of unsound mind and incapable of managing his affairs is likewise a proceeding in rein and the absolute right to dismiss is for like reasons “in conflict with public policy.” Cockrill v. Cockrill, 79 Fed. .134, affirmed 92 Fed. 811; Browning v. Chrisman, 30 Mo. 353 ; Adderton v. Collier, 32 Mo. 507; Harris v. Sanders, 38 Mo. 421. Probate courts are clothed with certain jurisdiction by the Constitution and statutes and have no common-law or equity jurisdiction. Perris v. Highley, 87 H. S. 375; Holbrook v. Cook, 5 Mich. 228; Dieming Co. v. Webb, 76 Mo. App. 337; In re Estate of Glover & Shipley, 127 Mo. 153 ; Railroad v. Probate Judge, 63 Mich. 676; In re Wells, 67 N. Y. Snpp. 631. (4) An insanity inquiry is a summary proceeding and the institution and control of the inquiry is in the sound discretion of the court, (a) Ordering an inquiry is a matter of discretion. In re Clifford, 57 N. J. Eq. 14; R. S. 1909, secs. 474, 529; In re Zimmer, 14 Hun, 214. (b) Evidence sufficient to invoke the exercise of this discretion. In re Latta, 43 Kan. 533; In re Chudek, 118 Mich. 361; Berthia v. McLennon, Ired. L. 523. (c) The person giving the information need not be personally interested. In re Burke, 125 N. Y. App. Div. 889; Baker v. Searle, 2 R. I. 115; Shenango Tp. v. Wayne Tp., 34 Pa. St. 184; Territory v. Gallatin County, 6 Mont. 297; Foran v. Healey, 73 Kan. 637. (d) Dismissal of sanity inquiry at the request of the informant is discretionary with the court. R. S. 1909, sec. 531; State ex rel. v. Johnson, 138 Mo. App. 306; Florez v. Uhrig, 35 Mo. 519; Jones v. Traction Co., 137 Mo. App. 411; Ensor v. Smith, 57 Mo. App. 584. (e) There was no abuse of the court’s discretion in denying the application to dismiss the proceedings.
   FARIS, J.

This is an original proceeding by certiorari, to bring up the record of the probate court of Jackson county, in the matter of an inquiry formerly pending in that court, touching the sanity of one Jane Eliza Plunket.

Jane Eliza Plunket is the wife'of Dr. J. D. Plunket, of Nashville, Tennessee. She was the sister of Thomas H. Swope, deceased, and by the will of the latter there was bequeathed to her the sum of $10,000, together with a devise of a half-interest in a certain building situate on Main street in Kansas City, Missouri. Upon an inquest of lunacy had at Nashville she was adjudged to be a person of unsound mind and a curator, of her property appointed for her. This curator, one Robert Vaughan, a resident, of Nashville, had joined with' Mrs. Plunket’s cotenant in the Kansas City property in making a lease thereof for a term of years to Oppenstein Brothers. The latter being, as the petitioner in the insanity proceeding averred, apprehensive touching the validity of a lease of Missouri real estate ex-' ecuted by a foreign curator of one who had been adjudicated a person of unsound mind, Vaughan had his attorney, the relator Paxton herein, to institute in the probate court of Jackson county, of which respondent herein is the judge, an inquiry into the sanity of Mrs. Plunket, pursuant to the provisions of section 529, Revised Statutes 1909. Notice of this proceeding was served on Mrs. Plunket in Nashville, Tennessee, whereupon, in response thereto, she came to Kansas City and procuring counsel, arranged to defend against the proceeding to have her adjudged insane. Relator thereupon went into the probate court and asked leave to dismiss the proceeding, averring his willingness to pay all costs of whatever kind accruing upon the inquiry up to the time of his asking leave to dismiss. Mrs. Pliinket resisted relator’s efforts to dismiss, and to this end filed in the probate court strenuous suggestions in opposition thereto, which suggestions being duly considered by the court, were sustained for the reasons set out in the finding and order of the court, which finding and order as they may be pertinent, and are cogent, we subjoin:

"Now on this day this matter coming on to be heard on the original and supplemental application of John G. Paxton for leave to withdraw the information in writing given to the court and dismiss this proceeding and the same, together with the answer and cross petition under oath of Jane Eliza Plunket filed prior to the filing of said original application praying that the proceeding shall not abate, bnt that it should be tried.and the objections under oath of the said Jane Eliza Plunket to the granting of such leave and also her objections to granting the leave requested in such supplemental application each and all having been by the court seen, heard and fully considered, the court-finds :
“That the information in this matter was filed April 11, 1913, and was set for hearing April 28th. Notice of such information and setting requesting her to be present was served on Jane Eliza Plunket on April 14th.
‘ ‘ That in answer to this notice she came here from Nashville, Tennessee, and appeared in person on the 28th day of April, the day set for impaneling the jury and she has since remained here for the purpose of attending the inquiry and has employed counsel and in her statement says she has obtained expert medical testimony to be used at the trial and has incurred large expense.
“That the proceeding has regularly been continued from time to time since that date.
“That she filed on May 19th an answer under oath to the written information praying that the proceeding should not abate, but that it should be tried.
“That the original application for leave to dismiss was filed-May 24th, and she filed in writing, under oath, objections to the dismissal, reciting in detail why such dismissal would result in great hardship and irreparable loss and injury to her.
‘ ‘ That it is not disputed that she is the owner of real estate on Main street in Kansas City, Missouri, of the value of more than one hundred thousand dollars and renting for more than six thousand dollars a year which is not in the lawful possession of any responsible person and that all the statements in the information, as well as in the answer and in the written objections, with tbe exception of the statement that she is of unsound mind and incapable of managing her affairs, are undisputed and being made under oath, are in this ruling accepted as true.
“That.this is a special statutory proceeding in which the constitution and statutes vest the jurisdiction in the probate court and the right to dismiss rests in the discretion of the court and should not be granted when it would work a hardship or injury to a person of alleged unsound mind and that person demands' a trial.
“That it is not claimed that there has been and there has not been any changes in the facts since the proceeding was begun as to the necessity of a guardian, and considering the statements under oath contained in the information and in answer and objections of the said Jane Eliza Plunket, great injustice would be done her by dismissing the proceedings.
“That the supplemental application this day filed to withdraw the information given in writing to the court and to dismiss the proceeding is in substance the same as the original application and the objections of the said Jane Eliza Plunket to the granting of the leave requested in said supplemental application are the same in substance as her objections to granting the leave requested in the original application.
“That the application and supplemental application for leave of court to withdraw the information and dismiss this proceeding are, for the reasons shown in the information and in the answer and cross petition to the information and in the written objections to the granting of such leave, therefore, denied.
“The matter of costs is in the discretion of the court and- if John Gr. Paxton, the informant, objects to further proceedings herein he should not be taxed with costs of such further proceedings regardless of the final determination of' this proceeding. It is further ordered by the court that this case be set for hearing on June 191,1913, at ten o’clock a. in.”

Thereafter the probate court proceeded with the inquiry before a jury, apparently in the usual way prescribed by statute. This jury, after a hearing, returned its verdict finding Mrs. Plunket to be a person, of sound mind, and an order of the probate court was entered accordingly.

This proceeding is brought here to test the legal correctness of this action of the probate court. Upon application made to us by said John Gr. P'axton, as relator, we issued a-preliminary rule to respondent, Judge Jules E. Gruinotte, judge of the probate court of Jackson county, requiring him to send up to us a full and true transcript of all pleas and proceedings and the record in said inquiry, and to show cause why the judgment of the probate court in the behalf aforesaid should not be quashed and for naught held. Respondent duly made return denying that his action as judge of the probate court was unlawful, and, complying fully with our further order, sent, up to us the transcript of all pleas and proceedings.

In passing it is but fair to say that Mrs. Plunket, upon an inquiry touching her sanity, had at an indefinite date in the year 1911 before the chancery court at Nashville, in D'avidson county, Tennessee, having-jurisdiction in that behalf, been found by a jury to be sane. This finding was set aside by the judge of the court holding the inquest and a finding by the court entered that she was a person of unsound mind. This latter finding was affirmed upon appeal, and said Robert Yaughan, who was by -the probate court of Tennessee appointed curator of her property (she had no guardian of her person), has since been acting in that capacity, and as we state above, executed the lease of her Missouri property.

In the Tennessee inquiry many witnesses were called, 107 it is- said in all, and some 1600 pages of testimony were taken. It is only fair, though concededly not pertinent, to say that Mrs. Plunket made profert to relator of the use of this evidence, offering to waive any objections to its competency, and to permit rela.tor, in whose possession, as petitioner in the insanity proceeding, a copy of all this testimony was, to offer the whole of it.

OPINION.

It will appear from the statement of facts that there is but one question in this case, which is: May a proceeding under our statute in the nature of the writ inquirendo de lunático. be dismissed at will by him who brings it? Has the petitioner under the statute so far the absolute control of the proceedings as that, regardless of the objections of the person whose sanity is under inquiry, and of the discretion of the probate court, he has the absolute right to dismiss it at any stage of the proceeding upon the payment of the costs accrued? This is the concrete case before us. If such petitioner has the absolute and arbitrary right to quit at will, then the writ herein should go, quashing the action of the probate court which held to the contrary view.

In limine, we should say that there is no point made in the case of conflict of jurisdiction as between the courts of this State and those of the State of Tennessee. [Commonwealth v. Kirkbride, 2 Brewst. 419; Herndon v. Vick, 18 Tex. Civ. App. 583; Ex parte Gillam, 2 Vesey, Jr., 587.] Upon the question of whether there could arise such conflict, since insanity vel non is in a sense a transitory status, making us in law insane today and sane to-morrow, or vice versa, as the probate court may hold, and since the judgment decreeing the status is never final, and is not res adjudicada (State ex rel. v. McQuillin, 246 Mo. 586), we are not therefore called on to say. "We do not say and are not required to say, whether a. person may be insane on the east side of the Mississippi river and sane on the west side thereof or not. That point is not in the case. The-point here is, and is only, touching the control which relator has over the proceeding in the probate court.

Learned counsel for relator insist that inasmuch as this court (State ex rel. v. Holtcamp, 235 Mo. 232; Hunt v. Searcy, 167 Mo. 158), as well as the St. Louis Court of Appeals (State ex rel. v. Dickman, 157 S. W. 1012), has held that an inquest de lunático is a “civil case,” and that the same is an adversary, as contra-distinguished from an ex parte proceeding', such consideration practically settles the question vexing us. We concede that the holdings have been thus and as above epitomized. It has also been held that probate courts are courts of record and in practice, where not otherwise provided, may borrow from the code. [Clinton v. Clinton, 223 Mo. l. c. 388.]

Such concessions prove nothing and are beside the question. Will contests likewise are civil actions, and civil suits, and in the form thereof always adversary, as opposed to ex parte proceedings. Yet such actions may not be dismissed by the plaintiffs against the will of the defendants. The answer is mayhap that such, rule in a will contest case arises from the peculiar nature of the ease. We cheerfully grant this and answer that likewise and similarly the distinction which we think we see in the instant case and which differentiates it from the ordinary civil action or civil suit, arises from the peculiar and inherent nature of the case. Who are the parties in interest in an inquest de lunático under our statute? Manifestly, (a) the public at large, that it may not suffer in person or property from the dangerous vagaries or mania of the individual alleged to be of unsound mind, and for that such person by a dissipation of his property, may not become a charge upon the public purse, and (b) the person whose mind is under suspicion, the alleged crazy person, that he may not suffer from the detention of his property or person in the custody of another. If there he others who are interested, in reason, they fall into the class of the general public, already mentioned, or they fall out of consideration because they act from sinister personal motives of self-interest, not fairly to be taken into account as producing an interest in the law to be reckoned with here.

The courts pretty generally take this view of the case. In the case of Gerke v. Colonial Trust Co., 117 Md. l. c. 583, it was said:

‘ ‘ The contention of the appellant is that the proceeding for an adjudication in lunacy and the appointment of a committee is one which ordinarily is and should be instituted upon the initiative of a member of the family of the lunatic. It is undoubtedly true that in the vast majority of the cases such a proceeding is so instituted, but that fact by no means precludes the institution of such a proceeding by some person other than a relative or member of the family. It is matter of frequent occurrence that proceedings of this character are set in motion by some friend or acquaintance of a lunatic, or even by a law officer of the State where no such proceedings has been started by relatives and friends, and that with which the courts are mainly concerned is not who institutes the proceedings but whether the proceeding is for the best interest of the individual alleged to be lunatic, and of the people among whom he lives.”

In the Murtaugh case on this question it was said:

“Section 3333 of the Code of Civil Procedure defines an ‘action’ in the following words: ‘The word “action,” as used in the new revision of the statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. ’
“By section 3334 a ‘special proceeding’ is tiras defined: ‘Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding. ’
“The surrogate was probably right in holding that this was not a special proceeding within this definition. The proceeding is one for the protection of the alleged lunatic and for the protection of society. The petitioner neither gains nor loses by the' order entered therein. No right is enforced, no wrong redressed, no public offense is punished. Moreover, the intention of the lawmakers is manifest to make special provisions for this proceeding, and not to bring the proceeding within the general rules of the Code of Civil Procedure governing special proceedings.” [In re Murtaugh, 102 N. Y. Supp. l. c. 177.]

Likewise the Supreme Court of Indiana said in the case of Ruhlman v. Ruhlman, 110 Ind. l. c. 315:

“We agree that the proceedings are, in a sense, special and statutory, and that they are not in all respects subject to the provisions of the civil code. They are not civil actions. Such proceedings are, however, peculiarly under the jurisdiction and control of the court. The persons and estates of the insane, or those alleged to be insane, are the subjects of protection and care of courts having probate jurisdiction. When the proceeding is instituted, the matter is then under the direction of the court, even to the extent of authorizing it to cause the seizure of the body of the person alleged to be of unsound mind. The statute under consideration .makes no provision for a dismissal, nor does it provide for an appeal to this court. The court-may or may not authorize or permit the petition to be dismissed. In G-alb-reath v. Black, 89 Ind. 300, it was held that the court ought not to allow the proceeding to be dismissed without the consent of the person alleged to be of unsound mind. ’ ’

Upon this point, as also upon one phase of the petitioner’s attitude in law, toward the proceeding, it was said in the case of Hughes v. Jones, 5 L. R. A. 632, that:

“The primary object of the proceeding is not to benefit any particular individual, but to see whether the fact of mental incapacity exists, so that the public, through the courts, can take control. The petitioner can derive no direct benefit from it. The advantage to him, if any, is. only such as would result if any other person had first acted in the matter.
“Attentive study of the history, nature and object of lunacy proceedings leads to the conclusion that the. petitioner therein is not a party to the record so as to be personally estopped by the .finding of the jury, except as all the world is estopped. ’ ’

It was said in the above case that this condition, that is, the peculiar attitude of the law toward an inquest de lunático, as well as toward the one who as petitioner put the inquest in motion, arose from the fact that anciently the King as the political parens patriae assumed custody‘ ‘ as guardian of his subjects. ’ ’ Further it is said that in this country the proceedings are “instituted in behalf of the people of the State who succeeded to the rights of the King in this regard.” [Hughes v. Jones, supra.] The upgrowth of this view, the ancient laws and the logic of the position are thus set out in the case, supra:

“The origin and history of lunacy proceedings throw some light upon the subject. It was provided by an early statute in England that ‘the King shall have the custody of the lands of natural fools (idiots), taking the profits of them without waste or destruction, and shall find them in necessaries, of. whose fee soever the land be holden. And after their death he shall restore them to their rightful heirs, so that no alienation shall be made by such idiots, nor their heirs be in anywise disinherited.’ [17 Edw. II, chap. 9.]
“The same statute provided for lunatics, or such as might have lucid intervals, by making the king a trustee of their lands and tenements, without any beneficial interest, as in the case of idiots, who were the source of considerable revenue to the crown. [Id., chap. 10; Beverley’s Case, 4 Coke, 127; 1 Bl. Com., chap. 8, sec. 18, p. 304.] This statute continued in force from 1324 until 1863. [Ordronaux, Jud. Aspects of Insanity, p. 4.]
“The method of procedure thereunder is described by an early writer as follows: ‘And, therefore, when the king is informed that one who hath lands or tenements is an idiot, and is a natural from his birth, the king may award his writ to the escheator or sheriff of the county where such idiot is, to inquire thereof.’ [Fitzherbert, De Natura Brevium, 232.]
“The object of the writ was to ascertain by judicial investigation whether the person proceeded against was an idiot or not, so that the king could act under the statute; for his right to control idiots or lunatics and their estates did not commence until office found. [Shelf. Lun. p. 14.]
“Subsequently authority was given to the Lord Chancellor to issue the writ or commission to inquire as to the fact of idiocy or lunacy, and the method of procedure was by petition suggesting the lunacy. [Ibid.; Re Brown, 1 Abb. Pr. 108, 109.]
“It was the ordinary writ upon a supposed forfeiture to the crown, and the proceeding was in behalf of the king as the political father of his people. [Ibid.; Fitzherbert, De Natura Brevium, 581.]
“As the means devised to give the king his right of solemn matter of record, it was necessary before the sovereign could "devest title. [3 Bl. Com. 259; Phillips v. Moore, 100 U. S. 208, 212, 125 L. Ed. 603, 604; Anderson, Dict., title Office Found.]
“It was used to establish the fact upon which the king’s rights depended, as in the case of an alien who could hold land until his alienage was authoritatively established by a public officer, upon an inquest held at the instance of the government. Whether the basis of action was infancy or alienage, or otherwise, the proceeding was in behalf of the public represented by the king. [Ibid.]
“The inquisition was an inquiry made by a jury before a sheriff, coroner, escheator pr other government officer, or by commissioners specially appointed, concerning any matter that entitled the sovereign to the possession of lands or tenements, goods or chattels, by reason of an escheat, forfeiture, idiocy and the like. [Chitty, Prerog. 246, 250; Staunf. 55; Rapalje & L., L. Dict. title Inquest of Office.]
‘£ Thus the law came to us from England, and after the Revolution the care and custody of persons of unsound mind and the possession and control of their estates, which had belonged to the king as a part of his prerogatives,. became vested in the people, who by an early act confided it to the chancellor and afterward to the courts. ”

If then it be that the interest of the petitioner in the case (costs which our statute regulates excepted), is thus but negligible, it would seem to follow that when an inquest touching the sanity of a person is thus begun in this State under our statute, the interest of the petitioner being found in the ancient history and logic of the case to be utterly subordinate to the interest of the public and to that of the person under inquiry, the petitioner may not dismiss the inquest unless the probate court consent. The matter solemnly begun upon the oath of petitioner (Royston’s Appeal, 53 Wis. 612; 22 Cyc. 1143), ought not to be dismissed at the will, whim or caprice of the latter, or at all unless the probate court, in whom the law has vested the matter as the successor pro hac vice of the king’, should in his discretion see fit to allow a dismissal.

The same result was reached in the case of Galbreath v. Black, 89 Ind. 300, which was upon the facts and the precise point up for ruling, a case upon all-fours with the case at bar. In this case it was said:

“We are of the opinion that in such a proceeding as the one at bar the party making the complaint can not dismiss such proceeding without the consent of the court before whom the same is pending, and that, as a rule, such consent ought not to be given, over the objections of the person alleged to be of unsound mind. Such a person is entitled, we think, if there is a failure of evidence to sustain the complaint, to the verdict of the jury finding that he is not of unsound mind; and the complaining party ought not to be permitted to deprive him of such right, over his objections, by the dismissal of the proceeding or the withdrawal of such complaint. It seems to us, therefore, that the court committed no error in overruling appellant’s motion for leave to dismiss the proceeding and withdraw hex-petition.” -

Some of the reasoning of the court in the above case has been criticized, by later holdings of the Indiana Supreme Court, but the result reached has not been overturned or questioned. [Berry v. Berry, 147 Ind. 176.] In the case of Ruhlman v. Ruhlman, 110 Ind. 314, the doctrine of Galbreath v. Black as to petitioner’s lack of the right to dismiss, was reiterated with approval. In Berry v. Berry, supra, while criticizing and overruling the argument in Galbreath v. Black that inquests de lunático are ex parte and not adversary, and that they are not civil actions, the court yet said:

“We have no occasion to disagree with the conclusion there reached, but it is certain that more recent decisions hold that such proceedings are not ex parte, but are adversary, and that notice is indispensable unless waived. [Martin v. Motsinger, 130 Ind. 555; Jessup v. Jessup, 7 Ind. App. 573.] It has been held by this court also that an action ‘is any judicial proceeding which, conducted to a termination, will result in a judgment, ’ and that a civil action ‘is an action wherein an issue is presented for trial, formed by the averments of the complaint, and the denials of the answer, or the replication to new matter and the trial takes place by the introduction of legal evidence to •support the allegations of the pleadings, and a judgment in such an action is conclusive upon the rights of the parties and could be pleaded in bar.’ [Evans v. Evans, 105 Ind. 204, citing Deer Lodge Co. v. Kohrs, 2 Mont. 66, 70.]”

Our courts have, likewise touching the nature of the proceeding, reached the identical conclusion reached by the Indiana courts, that is to say, that the proceeding is a civil action, certainly as contra-distinguished from a criminal action (State ex rel. v. Holtcamp, 235 Mo. 232), and that it is an adversary, and not an ex parte proceeding. [Hunt v. Searcy, 167 Mo. 158.] But in our view the rule and the controlling reasons therefor are in no wise affected by these holdings.

We conclude that when the probate court has. once •acquired jurisdiction of an inquiry under our statutes touching the sanity of any person, such inquest can not be dismissed by the petitioner, except with the ■consent of the probate court acting in his discretion for the best interests of the' public and the person whose sanity is. under inquiry. . And that subject to the discretion of the court in the above behalves, the only effect of petitioner’s reqriest for leave to dismiss would be to relieve him absolutely from the liability to pay ■such costs as might thereafter accrue in the proceeding.

It results and we hold that the action of the judge ■of the probate court of Jackson county was proper, and that the writ of certiorari issued herein should ‘ be quashed. It is so ordered.

All concur.