This is an original proceeding by prohibition, in which it is sought to prohibit the respondent, judge one of the divisions of the circuit court of the city of St. Louis, from proceeding with the trial of an appeal from the probate court of said city taken from an allowance of an attorney fee for services alleged to have been rendered to the estate of Leo Caplan, then in the course of administration in said probate court.
Our preliminary rule having issued, return was duly made by the respondent which is in the nature of a demurrer, and with the certified record of the proceedings below, we have the following facts and issues present:
During the December term, 1923, of the probate court of the city of St. Louis, Missouri, and on the 8th day of January, 1924, an allowance was made relator as attorney fees in the matter of the above-named estate. On the 14th day of the same month and during the same term of the probate court, one of the residuary legatees *Page 486 filed a motion in the probate court, termed "exceptions to allowance of attorney fees and motion for rehearing on said petition for allowance." In this motion the court was prayed to set aside the allowance thus made and to grant a rehearing of the matter for the reason among others that the allowance was excessive and improper. No action was taken on this motion by the court during the December term, 1923. The complaining legatee, on the 26th day of January, 1924, and within ten days after the adjournment of said court for the December term, filed her affidavit and bond for an appeal to the circuit court from said order of allowance thus made. The appeal was granted as prayed and all papers relating to the proceedings were transmitted to the circuit court. The "motion for rehearing," however, was carried over without any action being taken thereon until the 19th day of April, 1924, when the probate court records show a continuance of the motion to the next June term, 1924, of said court. On July 12, 1924, during the June term, the court dismissed the motion and exceptions for want of prosecution. The appeal to the circuit court had advanced to the trial docket. At that stage, relator moved the court to dismiss the said appeal for the assigned reason that the circuit court had no jurisdiction, since the appeal was taken from the probate court while appellant's motion for rehearing was pending and undisposed of in said court; that the appeal was premature. The circuit court overruled the motion and ordered the trial to proceed, at which juncture our preliminary rule stayed further progress of the case.
The sole question for us to decide is whether the appeal was premature and thus whether the circuit court is without jurisdiction to hear the cause on appeal.
We are inclined to the view of respondent that the allowance of attorney fees constitutes an expense of administration and is not a demand under section 181, Revised Statutes 1919. The case of Crow v. Lutz, 175 Mo. App. 427, 162 S.W. 679, would so indicate. And it is *Page 487 quite clear that section 211 of our present statutes does not apply in the instant case but that sections 282 and 283, Revised Statutes 1919, are applicable. [See subsection 10 of section 282.]
It appears then that the statute makes no provision for a motion for rehearing or new trial from an order of allowance for the expense of the administration, and the probate court's order making the allowance of the fee for the estate's attorney is made subject to appeal at any time within ten days after the term at which the order is made. Therefore the appeal may be taken during the term or at a time not beyond ten days thereafter, and no motion for rehearing or new trial is necessary. It is respondent's position that since the statute makes no requirement for a motion for rehearing, that then such motion is to be treated as a nullity and cannot serve to carry the matter over the term, and relies chiefly upon the case of Marsala v. Marsala,288 Mo. 501, 232 S.W. 1048.
In Harkness v. Jarvis, 182 Mo. 231, 81 S.W. 446, our Supreme Court ruled that "a motion to set aside or vacate a judgment, independent of the statute in respect to motion for new trial and in arrest of judgment and the time of filing same, may be filed by either party any time during the term at which the judgment was rendered." That case further rules that a motion to set aside a judgment, filed during the term, is a live, active motion from that time on, and to destroy its force and power there must be some affirmative action of the court upon it. Such motion is considered under advisement and no affirmative action is necessary to carry same from term to term; that such motion, though not a timely motion for new trial, nevertheless such motion suspends the judgment beyond the term at which the judgment was rendered if such motion remains undetermined and is carried over to the succeeding term.
This court has in several instances had occasion to follow the Harkness case. [See Dower v. Conrad, *Page 488 207 Mo. App. 176, 232 S.W. 174; State ex rel. v. McPike, 243 S.W. 278.] However, we are required to follow the last previous ruling of our Supreme Court. In Marsala v. Marsala, supra, the Supreme Court recently had this question before it again, and while the Harkness case is not expressly overruled, it is impossible for us to reconcile those two cases. In the Marsala case it is decided that the trial court has no inherent power to set aside a judgment after the final adjournment of the term at which the judgment is entered, and where a motion is filed out of time for the filing of a motion for new trial, but is a motion addressed to the court to exercise its inherent power to change its judgment during the term, i.e., treating the motion filed as a mere "suggestion to the court," and where such motion is not acted upon at the term at which the judgment was rendered, then such motion does not suspend the judgment beyond the term, but the judgment becomes final at the end of the term at which same was rendered. That is to say, that since the trial court must exercise its inherent power to change a judgment during the term same is rendered, then a motion addressed to the court (not a motion for new trial duly filed) in which the court is asked to exercise its inherent power to change its judgment during the term, neither suspends such judgment nor carries over any such right to change the judgment to a succeeding term. So, regardless of the Harkness case and our former decisions bottomed upon the principle therein announced, we must take the law as we now find it and decide that the order of allowance by the probate court was a judgment which became final at the close of the term. The written suggestions of the legatee, the "motion for rehearing," did not have the effect to carry the judgment over to a succeeding term of the probate court, and therefore the appeal to the circuit court was properly taken.
The Springfield Court of Appeals, in Liberty Central Trust Co. v. Roy, 245 S.W. 1085, has considered the same general question since the Marsala case has been *Page 489 reported, and that court gave the Harkness case the interpretation we have here given it. We are asked to consider, too, that the appeal having been allowed by the court, said court lost further jurisdiction. True, the probate court allowed the appeal, approved the bond, and transmitted the files to the circuit court, and it may in a practical sense be presumed that the probate court overruled the suggestions for a rehearing by the legatee; however, that is not a deciding factor in the case.
Therefore it appears that the appeal to the circuit court was duly taken, and accordingly the circuit court has jurisdiction to try the cause, and our preliminary rule in prohibition should be discharged. It is so ordered. Nipper, J., concurs; Becker,J., dissents. *Page 490