State ex rel. Robertson v. Sevier

• Decision Date: 07 November 1939
• Docket Number: 36419
• Citation: 132 S.W.2d 961,345 Mo. 274
• Parties: State of Missouri at the relation of George A. S. Robertson, Superintendent of the Insurance Department of the State, Relator, v. Nike G. Sevier
• Court: Missouri Supreme Court

132 S.W.2d 961

345 Mo. 274

State of Missouri at the relation of George A. S. Robertson, Superintendent of the Insurance Department of the State, Relator, v. Nike G. Sevier

No. 36419

Supreme Court of Missouri

November 7, 1939

Preliminary rule discharged to the extent that the respondent circuit judge be permitted to make an order paying to the Superintendent of Insurance the money now in the registry of his court, but in all other respects writ is made absolute.

Roy McKittrick, Attorney General, Drake Watson and Harry H. Kay Assistant Attorneys General, for relator; Charles L. Henson of counsel.

(1) Prohibition is the proper remedy where a court is about to act in excess of jurisdiction as well as where it is about to act without jurisdiction. Dahlberg v. Fisse, 40 S.W.2d 606; State ex rel. v. Latshaw, 237 S.W. 770. (2) Before a court has jurisdiction in a particular case, it must have jurisdiction of the subject matter and of the parties and must also have power to render the particular judgment in the particular case. State ex rel. Woodmansee v. Ridge, 123 S.W.2d 20; Aetna Ins. Co. v O'Malley, 118 S.W.2d 3; Gray v. Clement, 286 Mo. 100, 227 S.W. 111; 296 Mo. 497, 246 S.W. 940. (3) It has been held by this court that respondent does not have jurisdiction to administer the funds mentioned in the motion pending before him. (4) If before a court can render a judgment it must of necessity make determinations which it does not have the power to make, then the court does not have jurisdiction of the cause nor jurisdiction to render the judgment. State ex rel. v. Denton, 229 Mo. 187. (5) The prayer of a pleading does not limit the court in granting relief, but the court can grant such relief as the facts set forth in the pleading justify. Caldwell v. Eubanks, 303 S.W.2d 980; 49 C. J. 173; 21 R. C. L. 489; Misgrove v. Bank, 187 Mo.App. 496. (6) The Central Missouri Trust Company movant in motion pending before respondent is not entitled to inject the issues raised by the motion in the case of Aetna v. O'Malley to which it was not a party. Mountain Grove Creamery, Poultry & Prod. Co. v. Willow Sprgs. Creamery Co., 202 S.W. 1054; Monticello Bldg Corp. v. Monticello Inv. Co., 52 S.W.2d 545; Zeitering v. Hargadine-McKittrick D.G. Co., 250 S.W. 913, 298 Mo. 461.

W. T. Ragland and Chas. H. Mayer for respondent.

(1) There being a motion for judgment on the pleadings, the facts stated in the return are admitted, and the sole question here is as to the legal sufficiency of respondent's return. It is from the admissions and allegations of that return that the facts to be considered must come. State ex rel. Ward v. McQuillin, 262 Mo. 260; State ex rel. Karbe v. Bader, 336 Mo. 263. (2) The Supreme Court did not hold in Aetna Insurance Co. v. O'Malley, 118 S.W.2d 3, either expressly or by implication, that the circuit court was without jurisdiction to appoint custodians to receive the moneys paid into court by the insurance companies and to deposit such monies in a bank. (3) If the circuit court had the authority to order and control the accounting, which is conceded by all, then said court had jurisdiction to appoint, and it was necessary for the court to appoint, some person, regardless of whether it called him a custodian, or clerk, or referee or receiver, to receive the money when, as the accounting progressed, the money was paid into court. Morgan v. Willman, 318 Mo. 171. (4) The circuit court had jurisdiction to order the funds deposited in a bank. State ex rel. North British & Merc. Ins. Co., Ltd., v. Thompson, 330 Mo. 1155; American Constitution Fire Ins. Co. v. O'Malley, 113 S.W.2d 804. (5) The Central Missouri Trust Company was in no sense an intervener. Monticello Building Corp. v. Monticello Inv. Co., 330 Mo. 1138; Rocca v. Thompson, 233 U.S. 317, 56 L.Ed. 453; Black's Law Dictionary, p. 651; 33 C. J. 476-7. (6) The money, although deposited in the bank, is still legally in the registry of the court depositing it; and the Central Missouri Trust Company, in accepting the deposits under the order of the court, became a representative or agent of the court, subject to the court's orders. Jones v. Merchants Natl. Bank, 76 F. 683, 35 L. R. A. 698. (7) As such representative of the circuit court, the trust company's motion was a simple request for permission and authority to pay a specific sum of money to a specific person, which person the trust company believed was entitled to it. The universally approved and proper proceeding, if, indeed, it is not the only permissible proceeding, for reaching money in the registry of the court or in a depositary of the court, is by motion filed in the same cause in which the money has been deposited; there would seem to be no other way for the depositary itself, claiming no interest in the fund, to proceed. Gregory v. Boston Safe Deposit Co., 144 U.S. 665, 36 L.Ed. 585; Jones v. Merchants Natl. Bank, 76 F. 683, 35 L. R. A. 698; Gregory v. Merchants Natl. Bank, 171 Mass. 67, 50 N.E. 520; 18 C. J. 779, sec. 52; State ex rel. Merriam v. Ross, 136 Mo. 271; State ex rel. Stroh v. Klene, 276 Mo. 208.

Tipton, C. J. Clark, Ellison and Leedy, JJ., concur; Hays, Douglas and Gantt, JJ., dissent.

OPINION

TIPTON

Prohibition: Relator seeks to prohibit respondent from passing upon a motion filed by the Central Missouri Trust Company, in which it asks the respondent to make an order directing it to pay to the relator the money it now has on deposit growing out of the restitution proceedings in the Aetna Insurance Company case, commonly known as the 10 per cent insurance rate reduction case.

Seventeen years ago the then Superintendent of the Insurance Department (hereinafter called the Superintendent) ordered a ten per cent reduction in fire insurance rates in this State. Under stipulation and by court order the insurance companies continued to collect the old rate pending a court review of the order, and gave bond to refund the excess premiums collected if the review proceeding should be determined against them. The Circuit Court of Cole County set aside the order. In June, 1926, this court on appeal reversed that judgment and sustained the reduction order. [Aetna Ins. Co. v. Hyde, 315 Mo. 113, 285 S.W. 65.] Our mandate directed that the Superintendent "be restored to all things which he lost by reason of said erroneous judgment" of the circuit court.

The insurance companies made certain refunds to policyholders of excess premiums collected. But thereafter the Superintendent filed in said circuit court a motion claiming that the companies had not made full restitution and praying that they be required to pay into court, with interest, the excess premiums still in their possession. The circuit court found that the companies had collected excess premiums in a designated total amount, and rendered judgment against them therefor, with interest, but further provided that they should have credit on the judgment for the sums already returned to the policyholders.

In the case of State ex rel. Abeille Fire Ins. Co. v. Sevier, 335 Mo. 269, 73 S.W.2d 361, we sustained the action of the circuit court but held was without authority to appoint more than three referees or to require a deposit for payment of costs. Thereafter, the circuit court appointed Messrs. L. H. Cook and H. P. Lauf as commissioners and custodians to examine the accounts and to receive the amounts due from the insurance companies. In other words, their duties were to conduct hearings and determine the sums of money due from each insurance company, receive this money from them and return the amounts due to each policyholder. It also ordered that the various sums of money received from the insurance companies be deposited in the Central Missouri Trust Company, that no money be paid out of the deposit except upon the written order of the court, and that all such payments should be made by check signed by the judge of the court and the two custodians.

The case of Aetna Insurance Co. v. O'Malley et al., 342 Mo. 800, 118 S.W.2d 3, involved the question of fees allowed Cook and Lauf as custodians and commissioners. We held that the court had authority only to appoint referees whose fees would be litigation costs taxed against the losing party, but that the court was without jurisdiction to distribute the insurance fund of the policyholders because Section 5874, Revised Statutes 1929, lodged that duty in the Superintendent.

Thereafter, the Central Missouri Trust Company filed a motion in the circuit court stating that that court had caused to be deposited with the movant "from time to time from December 29, 1934, to the 21st day of August, 1936, sums ranging in amount from 30 cents to $ 265,985.59 and aggregating the sum of $ 2,751,256.32;" that various sums were paid therefrom on checks drawn in accordance with the orders of that court; and that there was then a balance in the account so deposited of $ 2,360,488.23. It asked that the court make an order directing it to pay said sum of $ 2,360,488.23 to the Superintendent.

Thereafter the Superintendent as relator filed his application for this writ of prohibition to restrain the respondent from proceeding to hear and determine said motion of the Central Missouri Trust Company or to make any orders in regard to said deposit. Respondent's return to our preliminary rule stated that if not prohibited by this court, he intended to make an order to the effect that since he received the mandate in the Cook-Lauf fee case he was without jurisdiction to administer this fund, but that it was his duty to deliver this fund to the Superintendent of Insurance and he would make an order directing that said sum of $ 2,360,488.23, now on deposit in the Trust Company, be paid to the relator, without determining or...