State ex rel. Broadcasting Co. v. O'Malley., 35923.

• Decision Date: 02 May 1939
• Docket Number: No. 35923.,35923.
• Citation: 127 S.W.2d 684
• Court: Missouri Supreme Court
• Parties: STATE OF MISSOURI at the relation of MISSOURI BROADCASTING COMPANY, a Corporation, Relator, v. FRANK C. O'MALLEY, Judge of the Circuit Court, City of St. Louis, Division No. One.

127 S.W.2d 684

STATE OF MISSOURI at the relation of MISSOURI BROADCASTING COMPANY, a Corporation, Relator, v. FRANK C. O'MALLEY, Judge of the Circuit Court, City of St. Louis, Division No. One.

No. 35923.

Supreme Court of Missouri.

Court en Banc, May 2, 1939.^*

Prohibition.

PROVISIONAL RULE IN PROHIBITION DISCHARGED.

Godfrey, Anderson, Schurr & Taylor, George Foster and John Vogel for relator.

(1) The action of respondent judge in issuing an order against relator to produce for inspection by plaintiff below the books and records mentioned in the order complained of, is unconstitutional, unless the motion upon which the order was issued stated facts sufficient to show the relevancy and materiality of such books and records to the issues joined and the merits of the case. Secs. 11, 30, Art. II, Mo. Const.; Fourth Amend., U.S. Const.; Secs. 924, 928, R.S. 1929; State ex rel. A.T. & S.F. Ry. Co. v. Trimble, 163 S.W. 863, 254 Mo. 542. (a) The motion of plaintiff below, and upon which the order complained of was issued by respondent judge, fails to state facts sufficient to show the necessity, relevancy and materiality of an inspection of all the books and records mentioned in said order, insofar as the issues involved are concerned. Dowden v. Walrus Mfg. Co., 205 S.W. 259, 199 Mo. App. 657. (b) The motion to inspect, filed by plaintiff below, fails to state facts to show what items in relator's books plaintiff desires to inspect, or why that information is necessary, relevant and material to the issues joined, and the order complained of, issued by respondent judge by reason thereof, is beyond the jurisdiction of respondent judge and unconstitutional. (c) Discovery will not be granted where the facts are within petitioner's knowledge. State ex rel. Schlueter Mfg. Co. v. Beck, 85 S.W. (2d) 1034. (2) The return of respondent judge to the alternative writ issued by this court does not constitute a defense to relator's petition for prohibition and is merely a conclusion.

J.M. Feigenbaum and Gus O. Nations for respondent.

(1) This cause should be dismissed and the writ quashed because relator has not incorporated the alternative writ in his abstract of the record. Rule 13, Sup. Ct.; State ex rel. v. Trimble, 307 Mo. 536. (2) Relator's petition herein did not allege that the respondent was about to perform any act, judicial or otherwise, but complained only of an act already performed. Hence the alternative writ of prohibition should not have issued and should now be quashed. State v. Mills, 231 Mo. 493; State v. Ryan, 180 Mo. 32; Klingelhoefen v. Smith, 171 Mo. 455; State v. Burckhardt, 87 Mo. 533; State ex rel. Brncic v. Huck, 296 Mo. 374; Ostmann v. Frey, 148 Mo. App. 271; 50 C.J., pp. 662, 706; State v. Johnson, 293 Mo. 302; State v. Burney, 193 Mo. App. 326; State v. Thomas, 278 Mo. 85; State v. Taylor, 268 Mo. 312; 32 Cyc. 625. (3) The motion for judgment on the pleadings confesses the truth of the respondent's return and abandons every allegation of the relator's petition. Hence, the facts stated in the return are admitted to be the true and only facts of the case. State ex rel. v. Shields, 237 Mo. 329; State ex rel. v. Shelton, 238 Mo. 281; Wand v. Ryan, 166 Mo. 646; State ex rel. Amer. Pigment Co. v. Shields, 237 Mo. 329; State ex rel. Connors v. Shelton, 238 Mo. 281; State ex rel. Warde v. McQuillin, 262 Mo. 256; State ex rel. Sanitary Street Flushing Mach. Co. v. Garesche, 210 S.W. 900; State ex rel. Brncic v. Huck, 296 Mo. 374; State ex rel. Farmers' Exch. Bank of Gallatin v. Beals, 55 S.W. (2d) 1005; State ex rel. Anderson v. Kirkland, 55 S.W. (2d) 697, 227 Mo. App. 643. (4) There is nothing before the court to indicate that the respondent is about to perform any act; but the record shows the act complained of has already been done. It cannot be reviewed by prohibition. 50 C.J., p. 698; State v. Williams, 48 Ark. 227, 2 S.W. 843; State v. Mills, 231 Mo. 493; State v. Ryan, 180 Mo. 32; Klingelhoefen v. Smith, 171 Mo. 455; State v. Burckhardt, 87 Mo. 533. (5) The admitted facts show the respondent acted entirely within the jurisdiction given him by law. State ex rel. Terminal Railroad Assn. v. Tracy, 237 Mo. 109; State ex rel. Mo. Pac. v. Seay, 23 Mo. App. 623; State v. Ellison, 276 Mo. 642; State v. McQuillin, 262 Mo. 256; Davidson v. Hough, 165 Mo. 561; State v. Fox, 85 Mo. 61; Morris v. Lenox, 8 Mo. 252; Sec. 928, R.S. 1929. (6) The admitted facts show the records mentioned in respondent's order have been adjudged to be and in fact are relevant, material and competent evidence on the trial of the cause in the circuit court, and hence respondent's order was properly made. State ex rel. A.T. & S.F. Ry. Co. v. Trimble, 163 S.W. 862, 254 Mo. 542; State ex rel. v. Tracy, 237 Mo. 109, 140 S.W. 890; State ex rel. v. Pratt, 183 Mo. App. 209, 170 S.W. 419. (7) Judge O'Malley correctly ruled that the records mentioned in the order are competent evidence in the case before him. 71 C.J., p. 172; Anderson v. Caldwell, 242 Mo. 201, 146 S.W. 445. (8) The only evidence of the contents of the records ordered inspected is the statement and judgment of respondent that they constitute relevant and material evidence in the pending suit. The motion for judgment admits the truth of such statement. State ex rel. v. Shields, 237 Mo. 329; State ex rel. v. Shelton, 238 Mo. 281; State ex rel. Ellis v. Eakin, 130 Mo. 90; Wand v. Ryan, 166 Mo. 646; State ex rel. Amer. Pigment Co. v. Shields, 237 Mo. 329; State ex rel. Connors v. Shelton, 238 Mo. 281; State ex rel. Warde v. McQuillin, 262 Mo. 256.

TIPTON, C.J.

This case comes to the writer on reassignment. It is an original proceeding in prohibition. The relator contends that the respondent, a judge of the Circuit Court of the City of St. Louis, Missouri, exceeded his jurisdiction in making an order requiring relator to produce for inspection certain of its books and records in the case pending in that court wherein John C. Leonard is plaintiff and the relator, The Missouri Broadcasting Company, is defendant. To our provisional rule the respondent filed his return. The relator, then, filed a motion for judgment on the pleadings.

The facts are substantially as follows:

At the time the petition for writ of prohibition was filed in this court, a suit was pending in the Circuit Court of the City of St. Louis styled, John Leonard, Plaintiff, v. Missouri Broadcasting Company, Defendant, and the respondent was judge of that court.

That suit was to recover reasonable value for the services rendered by plaintiff to relator. The amended petition is in two counts. In the first count, it is alleged that the plaintiff was employed by relator on June 1, 1930, to perform certain services in connection with the conduct of relator's broadcasting station, for which relator agreed to pay the reasonable value thereof, and that this employment continued until October 31, 1935; that pursuant to this employment the plaintiff obtained affidavits that were used as evidence before the Federal Radio Commission in an action instituted by relator to increase broadcasting time allotted to relator's broadcasting station; that plaintiff traveled to various cities in making preparation for this hearing; that the affidavits obtained by plaintiff were used at this hearing and that plaintiff testified before the commission; that as a result of the services of the plaintiff the relator was allotted additional radio time; that from November 17, 1930, to October 31, 1935, the plaintiff acted as radio pastor of relator's station and also supervised religious services over its station; that the reasonable value of his services was $35,000.

The second count of the petition alleges that plaintiff procured a contract from the Third Baptist Church to use relator's station weekly from April 1, 1931, to the time of filing this petition and relator agreed to pay plaintiff fifteen per cent of the gross amount received; and that there is still due plaintiff $1875 on this contract. Relator's answer to this petition was a general denial.

While this cause was at issue and waiting trial, the plaintiff filed a verified motion to inspect the records and books of relator. After a hearing before respondent on this motion, he made the following order:

"Upon consideration of plaintiff's motion to inspect, it is by the Court ordered that the defendant within five days from the date of this order produce for the inspection of plaintiff the following books and records of defendant.

"Defendant's Cash Books, Journals and General Ledgers between the dates beginning June 1, 1930, and ending with October 31, 1935."

The respondent's return, among other things, states: "Respondent further states that at the time said motion for inspection of records and documents was presented to him in open Court, both plaintiff and defendant were represented by attorneys of record who were then present in person; that at a hearing then held on said motion, said attorneys for plaintiff and defendant made their statements and argument upon said motion, and said attorneys presented and exhibited to respondent the amended petition of the plaintiff in said cause. Respondent states further that upon consideration of the said motion for inspection and the plaintiff's amended petition in said cause, your respondent concluded that certain of the records mentioned in plaintiff's motion for inspection are not material evidence on the trial of the cause of action set out in plaintiff's petition in said cause, and your respondent denied plaintiff's motion for inspection of said records and documents; that from a consideration of the averments of plaintiff's petition in said cause, your respondent concluded that the cash books, journals and general ledgers of defendant, showing the income of defendant from the use of its broadcasting facilities during the broadcasting time plaintiff alleges by his petition he was instrumental in obtaining for defendant from the ...