Holman v. Renaud

COX, J. The question to be determined here is as to whether the court had jurisdiction to render the judgment which it did render. That the circuit court, being a court of general equity jurisdiction, has the power to remove a trustee will not be questioned. 1. Respondents seem to think that this is a proceeding under the statute, sections 4580 and 4581, and that the fact that defendant is a non-resident of the State disqualifies him to act as trustee and that he may be removed, with or without notice. In this they are mistaken. These sections of the statute do not apply to trusts created by will, but are limited in their application to trusts created by deed. [Hitch v. Stonebraker, 125 Mo. 128, 28 S. W. 443.] The court is given power by statute to require a trustee, appointed by will, to give bond, and on his failure to do so, may remove him. Section 4582, et seq, [404] but aside from these sections of the statute, the power to remove a trustee appointed by will, or to control Ms actions is exercised as an inherent power of the court, and is not derived from the statutes. 2. It is contended that plaintiffs could not maintain this action, and that fact being disclosed upon the face of the petition, the court, for that reason, acquired no jurisdiction to render judgment removing appellant in this case. In this contention we think he is right. This action is bottomed upon the clause in the will of Mrs. Bassinger, which provides for the building of a house of worship to be open to the free use of all evangelical denominations in the vicinity. Clearly the beneficiaries of this trust are the church organizations of that vicinity included in the designation “evangelical denominations.” Plaintiffs allege that they are resident property-owners of Watkins township in Dent county in the vicinity of the proposed location of the chapel. The will makes no provision for property-owners in that vicinity as such, and, hence, the petition shows on its face that the suit was not brought in the name of the real parties in interest, and shows that the plaintiffs in this suit have no right to maintain it. It has been suggested by appellant that this is a public trust, and, hence, if any suit can be maintained, it must be brought by the attorney general or prosecuting attorney. If this were a public trust, then we think his position is correct, but we do not think this trust is of that class. A public trust is one in which the public at large, or some undetermined portion of it, have a direct interest or property right, or in which the beneficiaries cannot be ascertained with certainty. In this case, the public at large are not directly interested, and there should be no serious difficulty in ascertaining who the beneficiaries are. It is clear to us that the church organizations mentioned above are the beneficiaries in this trust, and some one, or all, of them, or their rep [405] resentatives, axe the only proper parties to institute an action to remove a trustee. Generally speaking, a question of jurisdiction hinges upon two propositions, namely; jurisdiction of the subject-matter and jurisdiction of the person. In determining these propositions, however, the court proceeds upon the premise that the machinery of the court has been put in motion by a party authorized to bring suit, and that his petition states a cause of action. Hence, if the premise be wrong, the whole structure falls. If the land had not been sold and the defendant had been personally served, so that no question could arise as to the jurisdiction of the court over the subject-matter of the suit and the person of the defendant, yet when, as in this case, the facts Avhich impeach the court’s jurisdiction, appear on the face of the petition, this question may be raised by motion to vacate the judgment at a subsequent term, for a fatal defect of that character is never waived, and is not cured by the Statute of Jeofails and may be raised for the first time in the appellate court when the trial court’s attention was not called to it in any way. [Weil v. Greene County, 69 Mo. 281; Thomasson v. Insurance Co., 114 Mo. App. l. c. 116, 89 S. W. 564; Usher v. Telegraph Co., 122 Mo. App. l. c. 112, 98 S. W. 84; Rumsey Manufacturing Co. v. Baker, 35 Mo. App. 217.] As the plaintiffs in this case had no legal or equitable interest in the trust, the court could not acquire jurisdiction to remove this appellant as trustee in an action prosecuted solely by them, and, hence, the judgment rendered in this case was solely void and should for that reason, have been set aside when the attention of the court was called to it by the motion to vacate filed by appellant. 3. It has been suggested that this land, having been sold, the money sent to New Jersey, the executor living in New Jersey, the will having been probated there, and the trustee, Renaud, appellant in this case, being a [406] non-resident of this State also, that the court could not acquire jurisdiction either of the subject-matter or of the person of this defendant, and for that reason, the judgment in this case is void. From what we have said heretofore, it becomes unnecessary to pass upon these questions at this time. The appellant in this case, Ren-aud, is not disqualified from acting as trustee. As far as this record shows, he is now willing to act, and if he is, the provisions of the will may be carried out through him, and if he is willing to appear and execute bond, as may be directed by the circuit court, we see no reason why he may not proceed to execute this trust. For the reasons stated in paragraph 2 above, the judgment will be reversed and the cause remanded with directions to set aside the order overruling appellant’s motion to vacate the judgment, and enter an order sustaining such motion and vacating the judgment attacked by it. All concur.