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State5/24/2005
Opinion Vote: REVERSED ON DIRECT APPEAL AND REMANDED FOR FURTHER PROCEEDINGS. WRIT OF CERTIORARI IS QUASHED.
Spinden and Newton, JJ., concur
Opinion:
Paul E. Perry filed a petition for writ of certiorari in this court, as well as an appeal, seeking review of an order of the Probate Division of the Circuit Court of Boone County denying his petition for presentment of the will of his deceased father and his application for letters testamentary. Our writ of certiorari issued, and the writ and the appeal were subsequently consolidated. For the following reasons, we now quash our writ of certiorari and on the appeal reverse and remand for further proceedings.
On July 25, 2003, Marvin J. Perry (the decedent) died. Subsequently, on September 9, 2004, Paul E. Perry (Perry), the decedent's son, sought to enter a self-proving will executed by the decedent into probate by filing a Petition for Presentment of Instrument and an Application for Letters Testamentary in the Probate Division of the Circuit Court of Boone County. In both pleadings, Perry affirmatively pled that the statute of limitations applicable to presentment and to letters testamentary had been tolled by his active duty service in the military pursuant to 50 U.S.C. app. section 526 of the Servicemembers' Civil Relief Act, 50 U.S.C. app. section 501 et seq. Perry averred that he had been serving on active duty in the U.S. Army from January 8, 2003, to July 13, 2004.
On September 10, 2004, the day after the petition and application were filed, the probate judge entered her order denying Perry's Petition and Application, stating: "Petition for Probate of Will and Application for Letters Testamentary are denied, the Court finding more than one year has passed since the date of death of decedent which occurred on July 25, 2003."
On September 23, 2004, Perry filed a Petition for Writ of Certiorari in this Court. On October 8, 2004, Perry filed his notice of appeal of the trial court's judgment. On October 14, 2004, this Court entered its Writ of Certiorari. On November 5, 2004, the trial court entered its Return of Writ of Certiorari, stating that the court lacked jurisdiction to admit or reject the will because it was presented for probate over a year after the death of the decedent. The parties then filed briefs on the matter. Subsequently, Perry filed a motion to consolidate the writ case with his direct appeal, and that motion was granted. Thus, both Perry's petition for writ of certiorari and his direct appeal are now before this Court.
We must first determine whether Perry's direct appeal is properly before this Court because, if it is, certiorari will not lie. "'The office of the common-law writ of certiorari . . . generally extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunal to do the action complained of, and all questions of irregularity in the proceedings.'" State ex rel. Southwestern Bell Tel. v. Brown , 795 S.W.2d 385, 387-88 (Mo. banc 1990) (quoting 14 Am.Jur.2d, Certiorari section 2 (1964)). "The function of the writ is to bring that record before the issuing court for the purpose of determining whether the inferior tribunal acted outside its jurisdiction or otherwise illegally, in situations where no appeal or other available mode of review is afforded or where such other type of review is inadequate to meet the exigencies of the case." State ex rel Modern Fin. Co. v. Bledsoe , 426 S.W.2d 737, 740 (Mo. App. E.D. 1968) (internal citations omitted and emphasis added). "'Certiorari is a remedy narrow in its scope and inflexible in its character. It is not a general utility tool in the legal workshop. It cannot be
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