State v. Dillon

• Citation: 2 S.W. 417,90 Mo. 229
• Parties: STATE ex rel. HOLMES and others v. DILLON.
• Decision Date: 06 December 1886
• Court: United States State Supreme Court of Missouri

2 S.W. 417

90 Mo. 229

STATE ex rel. HOLMES and others v. DILLON.

Supreme Court of Missouri.

December 6, 1886.

1. STATE OFFICERS — SHERIFF NOT A STATE OFFICER — CONST. MO. ART. 6, § 12, AND AMEND. 1884, § 5, (LAWS Mo. 1883, PAGE 216.)

In Missouri, a sheriff is not a "state officer," within the meaning of the constitution of Missouri, art. 6, § 12, and fifth section of the amendment thereto adopted in 1884, (Laws Mo. 1883, p. 216,) giving the supreme court of Missouri exclusive appellate jurisdiction in causes where "any state officer is a party;" and the words "state officer," as used in the constitution, are to be construed in their popular sense, and refer only to officers whose official duties and functions are co-extensive with the boundaries of the state. BLACK, J., dissenting.

2. SAME — PROHIBITION — ESTOPPEL.

A state officer is not a party in a cause in which he neither sues nor is sued as such officer; and where such an officer is sued as an individual, and not as an officer, but sets up in his answer that he is an officer, which plaintiff denies in his replication, and recovers judgment, and, on an appeal being taken, plaintiff argues and submits his cause for judgment to the appellate court without suggesting that defendant is a state officer, and then petitions for a writ of prohibition on the ground that the court to which the appeal is taken has no appellate jurisdiction over a state officer, the supreme court, in exercising its discretion as to the granting or refusing such a writ, will take into consideration the action of the plaintiff in denying the fact of the defendant's being such state officer.

Prohibition.

Mills & Flitcraft, for petitioners, Holmes and others.

NORTON, J.

It appears from the petition that relators brought suit by replevin against Henry F. Harrington, in the circuit court of the city of St. Louis, to recover possession of certain goods in Harrington's possession of the value of $365; that Harrington filed his answer, denying the right of relators to the possession of the goods, setting up and alleging that he was sheriff, and, by virtue of certain writs of attachment, he had levied upon the goods in question as the property of Ellis Leubrie and others; that said property was the property of said Leubrie, and that he had a right to seize and hold it. Harrington further set up in his answer that prior to the issuance of the writ in plaintiffs' suit that the said Leubrie made a voluntary assignment of all their goods, including those replevied, to one Hillman, and who, subject to the attachment, was entitled to hold such property as assignee. It further appears that plaintiffs filed replication to this answer, and deny each and every allegation contained in it. Subsequently said Hillman filed his petition to be made a party defendant, which was granted, and he filed answer denying plaintiffs' right to the goods, and setting up that, by virtue of a voluntary assignment made to him by said Leubrie of all their goods for the benefit of creditors, he was entitled to the possession of them.

On the trial of the cause relators obtained judgment for possession of the goods. Both defendants made motions for new trial, and prepared bill of exceptions. Hillman, the assignee, filed bond for appeal to the St. Louis court of appeals, where the judgment was reversed, and cause remanded for a new trial; both relators and Hillman appearing in said court by counsel, who argued and submitted the cause to the court. That the mandate of said court was thereafter filed in the office of the clerk of the circuit court of the city of St. Louis; that relators filed motion in the court of appeals to recall mandate, on the ground that said court had no jurisdiction over the cause because one of the defendants was a state officer, which was overruled; and thereafter relators filed a plea to the jurisdiction of the circuit court to further hear and try said cause, on the ground that the judgment theretofore rendered by said court had never been modified, reversed, or set aside by an appeal taken to a court of competent jurisdiction, which plea the court overruled, and ordered the cause to be reset for trial. Relator and petitioner, on this state of facts, prays for a writ of prohibition to prohibit said court from retrying said cause, or modifying or changing the judgment first rendered.

Defendant, Dillon, circuit judge before whom the cause was tried, entered his appearance, and filed answer to relator's petition, in which, after denying certain allegations of the petition not material here to notice, alleges that Henry F. Harrington was only a nominal party to the replevin suit instituted by plaintiffs and relators, and that Louis M. Hillman, assignee of Leubrie Bros., became a party to, and is the real defendant in interest in, said suit, and that said Hillman, by his attorney, conducted the entire litigation in said proceedings, for and in behalf of himself as such assignee for benefit of creditors; that the only action taken by said Harrington in said proceedings was to file answer set forth in the petition, and was never represented in person or by counsel in any of the proceedings thereafter had, and that, after a motion for new trial had been overruled, said Hillman perfected an appeal to the St. Louis court of appeals, Harrington not joining in the same; that said relators entered their appearance in said court of...