Legal Opinion · Dissent

State ex rel. Deems v. Holtcamp

Supreme Court of Missouri

Decided November 14, 1912Published

Prohibition. (1) The petition of Augustus Ross, administrator, as filed in the probate court, is in such form that it is difficult to tell whether he asks the sale to pay indebtedness against the estate, or whether he seeks to obtain the sale by virtue of the provisions of Sec. 147, R. S. 1909. If the former, the court is clearly without jurisdiction to order the sale; first, for the reason that there are no debts proven against the estate, remaining unpaid; and second,…

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Prohibition. (1) The petition of Augustus Ross, administrator, as filed in the probate court, is in such form that it is difficult to tell whether he asks the sale to pay indebtedness against the estate, or whether he seeks to obtain the sale by virtue of the provisions of Sec. 147, R. S. 1909. If the former, the court is clearly without jurisdiction to order the sale; first, for the reason that there are no debts proven against the estate, remaining unpaid; and second, because no notice has been given or publication had, as is required by statute. R. S. 1909, Secs. 150, 151, 152; Church v.…

1Dissent

DISSENTING- OPINION.

FEEEISS, J.

— The petition of the administrator for an order to sell all the interest of the estate in the realty is evidently based on Secs. 147 and 148, *672R. S. 1909. It was so construed by the probate court, as is apparent from the terms of the order of sale, and so stated in the return of respondent Holtcamp, judge of that court.

The relators contend that under the facts the probate court was without jurisdiction to make the order of sale. This contention presents the only question necessary for consideration, namely: Did the probate court act within its jurisdiction? Our…

2Cases cited7 opinions

  1. McVey v. McVeySupreme Court of Missouri · 1873
  2. Valle v. FlemingSupreme Court of Missouri · 1854
  3. Desloge v. TuckerSupreme Court of Missouri · 1906
  4. Jackson v. MagruderSupreme Court of Missouri · 1872
  5. Hutchinson v. ShelleySupreme Court of Missouri · 1896

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