Ballew Lumb. & Hardw. Co. v. Mo. Pac. Ry. Co. From this general discussion of the subject in the Tribette case, the following general rule may be deduced: That equity will not interfere to prevent a multiplicity of suits unless the questions involved are of equitable cognizance. The mere fact that there is a community of interest in the questions of law and fact presented by a given controversy, or in the kind and form of relief demanded by or against each of several individuals, will not warrant such interposition. In addition to cases cited in the Tribette case, the curious will find a like doctrine announced in an extended note to Woodward v. Seely, 11 Ill. 157, 50 Am. Dec. 445. The rule is even more succinctly stated in Murphy v. Mayor, 6 Houst. 108, 22 Am. St. 345 and note, and Southern Mich. Lbr. Co. v. McDonald, 57 Mich. 292, in which it is said: "That equity will not entertain jurisdiction when the only object is to obtain a consolidation of actions, or to save the expense of separate actions, or where the claim of right rests on a mere question of law." As we said in State ex rel. Barker v. C. & A. R. R. Co., 265 Mo. 1. c. 686, each claim for overcharges is a suit within itself. We have here, as in that case, separate and distinct causes of action in a single proceeding, the establishment of each of which will require different proof. Although in the Barker case, the facts are in many respects not parallel with those at bar, the general equitable rule there invoked is applicable here to the effect that, although persons similarly situated may sue in the name of a class, the rule has no application where the establishment of their respective claims is dependent upon different proof. III. In holding against the plaintiffs' collective right to sue, there is involved an affirmative ruling as to the misjoinder and defect of parties which are characteristics of plaintiffs' incapacity, as sought to be maintained in this proceeding. 288 Mo.-31 Pending State ex rel. Burton v. Bagby. The pendency of a like suit in the Federal court is also urged as a ground of demurrer. This contention would be entitled to consideration so far as such priority of jurisdiction is disclosed by the petition, provided our holding as to the incapacity of the plaintiffs to sue in the manner herein, did not, as it does, result in an affirmance of the ruling of the circuit court. This contention, therefore, as well as others urged in the briefs in support of and against the demurrer, does not demand a review. The judgment of the circuit court is, therefore, affirmed. All concur. THE STATE ex rel. RUSSEL E. BURTON, Appellant, v. DAVID BAGBY, Probate Judge. 1. JUDGMENT: 2. Division Two, June 23, 1921. Conclusiveness: Attack by Mandamus: Will and Codicil. Where the probate court admitted a will to probate, but rejected a codicil attached thereto on the ground that it had not been legally attested, and in a suit to contest the will in the circuit court the codicil was not copied into the petition, offered in evidence or referred to in the judgment sustaining the will, a subsequent suit by mandamus cannot be maintained in the circuit court by a devisee named in the codicil to compel the probate court to probate or reject the codicil, since the recitals of the judgment sustaining the will are conclusive. : Jurisdiction: Collateral Attack. If the right of a devisee named in the codicil to have the codicil probated by the probate court which had rejected it was not an issue in the suit brought in the circuit court by a contestant of the will, wherein the will was sustained and the decree made no mention of the codicil, that question was not removed from the jurisdiction of the probate court, and its judgment rejecting it cannot be assailed by mandamus brought by the said devisee to compel the probate court to probate or reject it. If jurisdiction of the probate court over the rejected codicil was removed by the suit to contest the will, that court has no more jurisdiction State ex rel. Burton v. Bagby. now than it had after the suit to contest the will had been begun in the circuit court. But whether or not the jurisdiction over the codicil was removed by the contest suit, the judgment of the probate court rejecting the codicil from probate, being regular on its face, imports verity until set aside by contest or a direct proceeding, but cannot be set aside by a mandamus suit to compel the probate court to probate or reject the codicil. Appeal from Howard Circuit Court.-Hon. Samuel Davis, Special Judge. AFFIRMED. A. H. Waller and Paul P. Prosser for appellant. (1) Relator was entitled to prove the facts averred in his petition and set forth in the alternative writ to which respondent made return. (2) Plaintiff's petition stated a cause of action, and respondent's return to the alternative writ admitted every material fact averred in said petition and alternative writ, hence the court erred in dismissing said petition. (3) It positively appears from the face of the record that the codicil to the will has not been legally rejected by the probate or circuit court. (4) The order and judgment of the probate court rejecting said codicil, made on the 15th day of July, 1902, is a nullity, because the jurisdiction of the subject-matter, the will and codicil, had been divested out of said probate court, and transferred to the circuit court by virtue of the contest of said will and codicil begun five weeks prior thereto. State ex rel. v. Guinotte, 156 Mo. 519; State ex rel v. Imel, 243 Mo. 186. John Cosgrove and R. M. Bagby for respondent. (1) The respondent was judge of the Probate Court of Howard County and would have to have acted judicially to have made the order required of him by the alternative writ. A judicial officer cannot be com State ex rel. Burton v. Bagby. pelled to render a particular judgment. He cannot be coerced to render a particular judgment or to rectify an erroneous one. State ex rel. Hyatt v. Smith, 105 Mo. 6; State ex rel. Flick v. Reddish, 148 App. 715; Stowe v. Stowe, 140 Mo. 594; Stephens v. Larwill, 110 Mo. App. 159. A will cannot be probated again after the court has acted upon the application to probate. 40 Cyc. 1234. (2) Mandamus will not lie where the plaintiff has another remedy. Jamison v. Lenore, 126 Mo. 413; State ex rel. Bartly v. Filcher, 39 Mo. 388; State ex rel. v. Nerry, 105 Mo. App. 462. (3) If suspension of the jurisdiction of the probate court affords ground for mandamus, mandamus would not lie in this case for the reason that the application for the writ of mandamus did not set out the petition in the will contest case, and the contest judgment which appellant made a part of his application for the writ shows on its face that the codicil was not in the contest petition nor produced to the court in the contest. Suspension of the jurisdiction of the probate court over that instrument cannot be shown by ignoring the contest petition where the contest judgment does not mention that instrument. Benoist v. Murrin, 48 Mo. 54. There being no contest as to the codicil, the probate court acted within its jurisdiction in rejecting the codicil. Under the pleadings and evidence, appellant was not entitled to the writ of mandamus and the trial court did not err in refusing to make said writ permanent. State ex rel. v. Neville, 110 Mo. 345; State ex rel. v. Albin, 44 Mo. 346. WALKER, J.--This is an appeal from a judgment of the Circuit Court of Howard County, dismissing a proceeding by mandamus which had been instituted in that court against the probate court of that county to compel it to probate or to reject the codicil of a will. One Benjamin E. Nance died testate in Howard County, in May, 1902. The relator, appellant here, was named as one of the legatees in the will and as a devisee State ex rel. Burton v. Bagby, in the alleged codicil. At the time, he was an infant of tender years, but attained his majority in August, 1918. On June 3d, 1902, the will of the testator and the codicil were presented in vacation to the judge and exofficio clerk of the Probate Court of Howard County for probate, and the following entry of record was made in regard thereto: "I, J. T. Smith, judge and ex-officio clerk of probate within and for the county of Howard and State of Missouri, having examined the foregoing instrument of writing purporting to be the last will and testament of Benjamin E. Nance, deceased, late of Howard County, Missouri, and having heard the testimony of C. I. Smith, Harry G. Herndon, Wallace Estill, Jr., and W. J. Boggs, subscribing witnesses to said will, and the testimony of J. H. Herndon and J. F. Chancellor, subscribing witnesses to the codicil to said. will, do declare said two instruments of writing to be the will of said Benjamin E. Nance, deceased, late of Howard County, Missouri." On June 9th, 1902, a daughter of the testator brought a suit in the Circuit Court of Howard County to test the validity of the will and to have same probated or rejected. At the Novmber term, 1902, of said court, the issues were made up and the cause submitted to the court for determination. The court found in favor of the proponents of the will and incorporated a copy of the same without the codicil in its decree, in which it was declared that said will as copied and set forth therein was the will of the testator. A copy of this decree was ordered certified to the Probate Court of Howard County. While said suit was pending in the Circuit Court of Howard County, the following order was, on the 15th day of July, 1902, entered of record in term time, by said probate court: "The court approves the probate of the will of said deceased on the testimony of C. I. Smith, Harry G. Herndon, Wallace Estill, Jr., and William J. Boggs, |