The case presents these facts. On November 15, 1932, the Probate Court of Phelps County made a vacation order admitting the will of William Callahan, deceased, to probate. For some reason the present appellants brought a suit in the circuit court to contest the will. The case was tried on its merits and the circuit court directed a verdict sustaining the will. During the trial, so far as appeared from the record in that case, it did not occur to anyone that the vacation order probating the will had not been confirmed in term time under Section 529, R.S. 1939, Sec. 528, Mo. Stat. Ann., p. 322.
[718] However, the contestants appealed to this court and in their brief here did raise the point, claiming the circuit court lacked jurisdiction of the will contest for want of such probate confirmation in term time. On November 12, 1936, Division One of this court in Callahan v. Huhlman, 339 Mo. 634, 98 S.W.2d 704, upheld the contention of the appealing contestants, ruling the jurisdiction of the circuit court in the will contest was purely derivative, and since the probate court had failed to confirm in term time the vacation order theretofore made admitting the will to probate, the circuit court had no jurisdiction of the contest. The judgment was reversed and the cause remanded with directions to dismiss the contest for want of jurisdiction. *Page 398
But in the meantime, on February 26, 1934, during the pendency of the appeal in the will contest, the Probate Court of Phelps County, without notice to the contestants or their attorneys, had entered an order in term time confirming the aforesaid vacation order made over 15 months earlier. So, when the mandate of this court went down in November, 1936, it provoked an investigation wherefrom contestants learned that over two years and eight months before, in February, 1934, while the appeal was pending, the probate court had made the confirmation order in term time, as aforesaid, unbeknownst to them.
Confronted with this fact, appellants found themselves unhorsed and unable to bring a new will contest because Sec. 538, R.S. 1939, Sec. 537, Mo. Stat. Ann., p. 326, requires such contests to be brought within one year after the probate of the will. And Sec. 540, R.S. 1939, Sec. 539, Mo. Stat. Ann., p. 333, provides that if no contest be brought within that time the probate of the will shall be binding. Thereupon contestants brought the present action in certiorari in the circuit court, whereby they sought to quash the record of the probate court made in February, 1934, confirming the vacation order. Judgment went against them and they prosecuted this appeal.
Their contention was and is that the probate court had no power to enter the term time confirmation order in February, 1934, because it was made after the probate court had lost jurisdiction of the cause, and while the will contest was pending on appeal in this court. The principal opinion answers that contention by saying the decision of this court in Callahan v. Huhlman, supra, made the whole will contest proceeding a nullity, in consequence of which the probate court was not bound by the pending appeal in that case, did have jurisdiction of the probate proceedings, and could enter the term time order, as it did, in February, 1934.
I respectfully dissent from that holding. The institution of the will contest in the circuit court operated in the nature of an appeal from the proceedings in the probate court and had the effect of vacating them. [Fletcher v. Henderson, 333 Mo. 349, 355(1), 62 S.W.2d 849, 851 (1); Johnson v. Brewn, 277 Mo. 392, 210 S.W. 55.] When the appeal was prosecuted by the contestants to this court from the judgment of the circuit court it carried with it its own supersedeas, State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S.W. 281, 50 L.R.A. 787. This being true, the probate court lost jurisdiction and had no power to act after the contest proceeding was instituted in the circuit court and during its pendency on appeal here — unless, as the principal opinion holds, the contest proceedings were utterly void throughout. They were, of course, after this court said so in Callahan v. Huhlman, supra, and it is equally true that that decision when rendered operated retrospectively back to the institution of the contest, so far as the judgment was concerned. But I submit this does not mean the probate court could flaunt the authority of the *Page 399 higher courts while the jurisdictional question was being held for and under adjudication by those courts.
Jurisdiction of a court (in this case the circuit court in the will contest) has three elements. As stated in United Cemeteries Co. v. Strother, 342 Mo. 1155, 1162, 119 S.W.2d 762, 765, the requirements are: (1) jurisdiction of the subject matter; (2) jurisdiction of the person or thing; (3) and the point decided must be, in substance and effect, within the issue. This last essential is what is sometimes called "power to render the particular judgment in the particular case." [State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 708, 123 S.W.2d 20, 23.] The circuit court admittedly had general jurisdiction of the will contests and the parties were in court. The jurisdictional question confronting it arose under the third of the above heads or subdivisions.
But it is fundamental that the circuit court had power to hear and determine the question of its own jurisdiction. 15 C.J., sec. 170, p. 851, or, as [719] otherwise put, like every other court of general jurisdiction it had power to determine whether the conditions essential to the exercise of that jurisdiction existed. [14 Am. Juris., sec. 168, p. 368.] And the institution of the will contest in the circuit court and the supersedeas attending the appeal therefrom had the effect of protecting thestatus quo ante and prevented the probate court from striking out or vacating the judgment, order or decree appealed from, and from amending or modifying the same. [3 C.J., sec. 1448, p. 1322; 4 C.J.S., sec. 674, p. 1157; 3 Am. Jur., sec. 529, p. 193, sec. 543, p. 199.] At least this is true unless the whole proceeding was a complete nullity. If the latter proposition be affirmed it means the opinion of this court in Callahan v. Huhlman, supra, and the reasoning thereof, also were void, for our jurisdiction in that case was derivative. And it further means the probate court had the right to interfere with and frustrate the exercise by this court of its admitted power to determine its own jurisdiction.
Surely this cannot be the law. Looking at the case from a practical standpoint, these facts cannot be ignored. The parties joined issue on the merits in the will contest. On contestants' appeal from the judgment of the circuit court establishing the will they raised the point that that court had no jurisdiction of the contest because the vacation order of the probate court admitting the will to probate had not been confirmed in term time. Indeed the summary of contestants' brief as printed in our official report shows that was the only point raised. On the other hand, the proponents contended the circuit court judgment establishing the will was final, because the institution of the will contest had the effect of vacating the probate record, and the only question for decision in the contest was whether the instrument was or was not the will of Callahan. They further argued contestants were estopped to challenge the initial probate of *Page 400 the will since they had instituted the contest below and introduced the will in evidence.
All these and other questions were mooted on the appeal on the theory and assumption that there had been no probate confirmation of the will in term time. Division One evidently thought so because this sentence appears in its opinion (339 Mo. l.c. 638, 98 S.W.2d l.c. 706): "In the situation here the will in question, with no confirmation in term time (and assuming there will be none) of the proceedings had in vacation of the probate court, would not have the status and standing of a probatedwill until after the lapse of ten years from the date of such vacation proceedings." Yet at the very time that sentence was written, a confirmation order had been entered on the probate record in term time while the appeal was pending, and had been standing for over two years and eight months apparently without the knowledge of the parties on either side of the case.
In that situation the hands of the contestants were tied. They were held in court by proponents' opposition on the issue as it had been drawn. Both sides were proceeding on the theory that no confirmation order had been made. No one would say that either could have gone back to the probate court and obtained such an order while the contest was being thus waged. And if that is true the probate court could not enter the order on its own motion. It would be contrary to public policy for such an order to have validity, even though the superimposed contest and appeal were ultimately found to be void as to results for want of a jurisdictional basis. Without doubt the contest proceeding was legal and pending insofar as it afforded the circuit and Supreme Courts an opportunity to determine the jurisdictional question. And an interference with the exercise of that power was a contempt of the authority of those courts. [3 C.J., sec. 1458, p. 1327; 4 C.J.S., sec. 676, p. 1159.]
As stated in 13 C.J., sec. 19, p. 16: "Where steps taken to review an order, judgment, or decree by appeal . . . amount tosupersedeas . . . any attempt to carry out the order during the pendency of the proceedings for review will be adjudged contempt." A few paragraphs earlier the same Title says, 13 C.J., sec. 14, p. 13: "Disobedience of a void mandate, order, judgment, or decree, or one issued by a court without jurisdiction of the subject-matter and parties litigant, is not contempt. But the fact that the order is in part void does not justify violation of the valid parts thereof. The lack of jurisdiction must be such as is manifest in the inception of the proceeding, and not that which develops through the hearing and determination of the cause; hence it is no bar to the conclusiveness and sentence for contempt that the court was investigating a [720] matter over which it was finally ascertained to have no jurisdiction."
This text law is supported by the cases. Thus, in United States *Page 401 v. Shipp, 203 U.S. 563, 573, 51 L. Ed. 319, 27 Sup. Ct. 165, 8 Ann. Cas. 265, the defendant sheriff was charged with contempt of the United States Supreme Court for conspiring to permit the lynching of a negro in his custody, Johnson, who had theretofore been convicted of murder in a state court. Johnson's petition forhabeas corpus had been denied by a United States Circuit Court of Appeals and the Supreme Court had allowed an appeal and stayed proceedings. The lynching took place at that juncture.
The Supreme Court said: "Even if the Circuit Court had no jurisdiction to entertain Johnson's petition, and if this court had no jurisdiction of the appeal, this court, and this court alone, could decide that such was the law. It and it alone necessarily had jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument and to take the time required for such consideration as it might need. . . . Until its judgment declining jurisdiction should be announced, it had authority from the necessity of the case to make orders to preserve the existing conditions and the subject of the petition, just as the state court was bound to refrain from further proceedings until the same time. . . . The fact that the petitioner was entitled to argue his case shows what needs no proof, that the law contemplates the possibility of a decision either way, and therefore must provide for it."
In Passmore Williamson's Case, 26 Pa. 9, 21, the petitioner applied for a writ of habeas corpus to discharge him from custody under a commitment issued by a United States District Court for contempt in refusing to obey its process in another case pending before it. The petitioner's contention was that the latter court had no jurisdiction of the case out of which the commitment for contempt had been issued. The Supreme Court of Pennsylvania said: "There are some proceedings in which the want of jurisdiction would be seen at the first blush; but there are others in which the court must inquire into all the facts before it can possibly know whether it has jurisdiction or not. Any one who obstructs or baffles a judicial investigation for that purpose is unquestionably guilty of a crime for which he may and ought to be tried, convicted and punished."
Ex parte Wimberly, 57 Miss. 437, 445, thus declared the law: "When we say that a person may safely disobey the commands of a court which is without jurisdiction to issue them, we mean either that it has failed to give, or is incapable for some reason of giving, legal notice to the person whose rights are to be affected, or that the subject-matter of the controversy is one which that court has no right to consider in any aspect whatever."
The rule to be deduced from these authorities is that unless the court possessing the cause obviously has no jurisdiction of the general subject matter or the person, or, to state the proposition conversely, *Page 402 if the jurisdictional question pending before the court is more than colorable, then the court has a qualified jurisdiction to determine its own jurisdiction. This is true of necessity, and it makes no difference whether the question be one of fact or of law (as where the question turns on the construction of an ambiguous statute, conflict of statutes, ambiguous decisions, conflict of decisions, estoppel, waiver, etc.) if the question be substantial. And even then the substantiality of the question may be a matter for judicial inquiry. Some court must decide such questions, and if they exist in a case otherwise properly brought we can see no reason why the court cannot decide them. Insofar as that power exists the case is legally pending for the purpose; and interference with it is an unwarranted and illegal encroachment on the power.
This being true, I think we should hold void the act of the probate court in entering the term time order confirming the probate of the Callahan will while the absence of such an order and the necessity for it were the very issues in the then pending appeal in the contest case. Under the decisions cited above such action was contemptuous even though this court later ruled it had no jurisdiction of the contest. But considering the reason behind the law, it was more than that. The reason is that such action interferes with the processes of the appellate courts, and if it did that it should be held void as a matter of public policy.