State v. Ross

Decision Date27 June 1893
Citation23 S.W. 196,118 Mo. 23
PartiesSTATE ex rel. KLOTZ v. ROSS, Judge, et al.
CourtMissouri Supreme Court

3. Nor can such order be attacked in such collateral proceeding as having been fraudulently issued. Sherwood, J., dissenting.

4. After court has been adjourned until the next regular term by a special judge, the regular judge has no power to reopen it.

In banc.

Mandamus on the relation of Eli Klotz against Alexander Ross, judge, and others. Writ dismissed.

Alex G. Cochrane and H. S. Priest, for relator. J. W. Noble, G. D. Reynolds, and M. R. Smith, for respondents.

GANTT, J.

This is an original proceeding in this court to obtain a peremptory writ of mandamus, commanding the above-named respondents to deliver to the relator, Eli Klotz, all and singular the railway property, effects, and credits of the St. Louis, Cape Girardeau & Ft. Smith Railway, a railroad organized under the laws of this state, and running from the city of Cape Girardeau westward to a point in Carter county, Mo., about 100 miles in length. Upon an application filed in this court on March 16, 1893, an alternative writ issued to the respondents to show cause, on March 25, 1893, why a peremptory writ should not issue. The alternative writ was duly served, and return made on the 25th of March, and leave taken by both sides to take evidence. John W. Dryden, Esq., of the St. Louis bar was appointed a special examiner to take the proof and report to this court on May 2d. This was done, and on the 2d day of May the evidence was submitted, and argument heard, and leave taken to file briefs. The alternative writ alleges the incorporation and extent of the said railway; that Louis Houck was and is its president and general manager, and the owner of a majority of its stock; that Alexander Ross is the judge of the Cape Girardeau court of common pleas; and that said court is a court of limited jurisdiction, created by an act of the legislature, approved February 22, 1851, (Acts 1850-51, p. 201,) and an amendatory act, approved February 17, 1853, (Acts 1852-53, p. 80.) It then avers that Eli Klotz was appointed receiver of said railway on the 3d day of March, 1893, by the Honorable John G. Wear, judge of the circuit court of Stoddard county, Mo., in vacation, in a certain cause wherein E. G. Merriam is plaintiff and the said railway company, Leo Doyle, trustee, and the Mercantile Trust Company, are defendants, then pending in said Stoddard county circuit court, and returnable to the fall term thereof, for the year 1893; that afterwards said provisional appointment, made in vacation as aforesaid, was duly confirmed by the circuit court of Stoddard county on March 13, 1893; that, in pursuance of said appointment, the relator duly qualified as such receiver by taking the oath and filing his bond as such; that he demanded of said Louis Houck, the president of said railway, the possession thereof, but said Houck refused to deliver the same, claiming that he had been duly appointed receiver himself on the 4th day of March, 1893, by Hon. Alexander Ross, judge of the Cape Girardeau court of common pleas, in a suit in said court wherein said railway company was plaintiff and Leo Doyle, Edward Hidden, and the Mercantile Trust Company of New York are defendants; that he had qualified under said appointment, and had taken possession of said railway by virtue thereof. It is then averred that relator appeared in said Cape Girardeau court of common pleas, and exhibited to Judge Ross a copy of his appointment by the circuit court of Stoddard county, and suggested that Judge Ross had no jurisdiction to appoint said Houck because of the prior proceedings in the circuit court of Stoddard county, and because said common pleas court had no jurisdiction over equity cases, especially such a case as is set forth in the bill filed by said railway company against said Leo Doyle et al., in which said Houck was appointed receiver. The said bill is copied in full in the writ, and it is unnecessary to repeat it here. It then appears that Judge Ross declined to take any action at the time, but, in vacation, continued the hearing till the May term of his court, to which relator excepted at the time. It then avers that the petition in the Cape Girardeau court of common pleas does not state facts sufficient to constitute a cause of action. The writ then avers that relator is thus unable to obtain possession of said railway, and prays this court to command the respondents to show cause why they should not be directed by this court to turn over said property to him.

Return by respondents: The returns of the railroad company and other respondents aver that the order of Stoddard circuit court appointing relator, Klotz, receiver, was annulled on March 13, 1893, by that court; that he never had possession of the railroad, but that Houck, receiver, always has had since his appointment and qualification; that the common pleas had and has jurisdiction; that its judge, the respondent Ross, has so adjudged, and in his orders and proceedings under the bill named had acted judicially, and is proceeding in due course to hear and determine the same and all questions in relation thereto, as the same may arise; that Klotz, pretending to be a receiver, appeared in this common pleas court on that proceeding, and filed a petition for possession, which was ordered filed and continued to the May term, 1893, and is there now pending. This return also sets forth as a separate defense that the mortgages under which Merriam claims to hold the bonds, the coupons of which are not paid, and because whereof he begins suit, cover only 25 miles of this whole road, of which it has been attempted to give Klotz as receiver possession, which road is 100 miles long; that of the 25 miles covered only 5 are in Stoddard county; and the bill seeks, not a foreclosure, but that the road may be sequestered for payment of interest heretofore accrued and that may hereafter accrue, and a receiver appointed to take possession and operate the railroad as a unit, and for general relief. This portion of the return also states the provisions of each of these mortgages to the effect that the bonds do not mature until 1901, but that, if interest was not paid, the trustee therein, Leo Doyle, should, on demand of holders of not less than one-fourth of outstanding bonds thereunder, take possession of the road as far as covered by the mortgage, and operate the same for bondholders; and that it was in said mortgages expressly provided that nothing therein could be construed to affect or put any burden or liability on the right of way, bridges, property, or lands acquired or to be acquired on or along (in the first mortgage) the Lakeville Division of the road, extending from the (Delta) junction to Lakeville, or beyond that point, and (in the second mortgage) on or along the roadway lying and being southwest of Lakeville, or any donation or gift made to aid the road. And the return avers and claims, on the facts stated, that an order taking the whole road under the circumstances and contracts just mentioned is in violation of the several constitutions of the state of Missouri and of the United States, declaring that no person shall be deprived of property without due process of law, which guaranties are relied on and invoked by respondent. This return further sets forth the proceedings on the 13th of March, 1893, in the Stoddard circuit court in the Merriam suit, when this respondent, as well as Leo Doyle, filed its motion to annul the order appointing Klotz receiver, and for a change of venue; and that on that day the circuit court was open, and the court then and there, having fully considered the matter, vacated the appointment of Klotz, relator herein; and that the court was then adjourned to the next term in course by the legal and acting judge, who had up to that time been holding the term; and that the pretended order confirming the appointment of Klotz, set up by relator, was illegally entered after said adjournment, and is void.

The relator's answer to this return is aimed at this last averment, and sets forth the original order of March 3, 1893, of Klotz's appointment, and ordering the clerk to issue a summons and notice to defendants therein to appear before the circuit court at Bloomfield on March 13th, and show cause why said order appointing Klotz receiver should not be confirmed; that the railway company and Doyle did appear, and filed motions to vacate receivership and for change of venue; that George Houck, pretending to exercise the functions of the temporary and provisional judge, conspired with Louis Houck and his attorneys to fraudulently circumvent the confirmation of receiver Klotz, knowing Judge Wear was on his way to hold court pursuant to notice, and convened court at 8 o'clock, and, although motions were required to be filed one day, Houck, J., sustained said motion, and did immediately pretend to adjourn said court, and the conspirators fled the town, but Judge Wear, circuit judge, did convene said court, and did, on investigation by the...

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