State v. Shain

Citation297 Mo. 369,248 S.W. 591
Decision Date02 February 1923
Docket NumberNo. 23361.,23361.
PartiesSTATE ex rel. BURNS v. SHAIM, Circuit Judge.
CourtUnited States State Supreme Court of Missouri

Original action in prohibition by the State, on the relation of O. J. Burns, against Hopkins B. Shain, Circuit. Judge, Thirteenth judicial Circuit. Preliminary writ discharged.

W. D. O'Bannon, Montgomery & Rucker, and Paul Barnett, all of Sedalia, for relator.

D. S. Lamm, Henry Lamm, J. Bohling, and R. S. Robertson, all of Sedalia, for defendant.

WALKER, J.

Relator, by an original action in this court, seeks to prohibit respondent, as judge of the Thirteenth judicial circuit, from continuing in force a temporary injunction and to restrain him from proceeding against the relator for contempt for the latter's violation of the temporary writ. On November 14, 1921, the prosecuting attorney of Pettis county filed-in the circuit court of that county a suit entitled State of Missouri ex rel. Prosecuting Attorney, Plaintiff, v. O. J. Burns, Defendant, in which it was alleged that the defendant was the occupant and in charge of a building in the city of Sedalia known as the Falstaff Hotel, wherein he unlawfully sold and kept for barter and sale intoxicating liquors, and that the said building was then being used as a nuisance and should be enjoined and abated. On the filing of said petition, notice Was served on the defendant that on the 19th day of November, 1921, plaintiff would apply to the court for an injunction against defendant to have said building declared a public and common nuisance and abated as such. The only relief sought was the closing of the building. On the same day the defendant made application for a change of venue. Immediately thereafter there was much discussion in open court between the contending parties not necessary or relevant in the determination of the matter at issue, and the prosecuting attorney dismissed the case. On the same day he filed another petition having the same title and parties as in the first. It contained the same averments as to the unlawful sale and keeping for sale of intoxicating liquors in the Falstaff Hotel, and prayed that the building and premises be declared a public and common nuisance and that it be abated by a permanent injunction and closed for a reasonable length of time. In addition, it was prayed (which prayer was not in the first petition) that the defendant, his agents and servants, be forthwith restrained from maintaining said nuisance until the conclusion of the trial and pending the final determination of the case. The distinguishing difference between the two cases is that in the first no temporary injunction was asked as it was in the second. The temporary injunction, however, was not sought to close the building but to restrain the defendant and his agents and servants from maintaining a nuisance; the closing of the building being left to the conclusion of the trial as to whether a permanent injunction should be issued.

Upon the filing of the second petition, the plaintiff asked the immediate issuance of a temporary injunction; whereupon defendant's attorney asked for time to file an application for a change of venue, which was denied and a temporary injunction granted as prayed by plaintiff. After the entry of the order granting this writ, which restrained the defendant from conducting or maintaining the nuisance in the building, the defendant filed his application for a change of venue, but almost immediately withdrew the same and filed a motion to dismiss the temporary restraining order. Thereafter, the troubled waters seem for a time to have become stilled; the record disclosing no further entries indicative of action until January 4, 1922, when the plaintiff (as prosecuting attorney) filed an application that the defendant be cited for contempt in violating the temporary restraining order or injunction. This citation was issued and the defendant brought into court. He thereupon filed an additional motion to dissolve the temporary restraining order, which motion was overruled. He then asked time within which to commence the action at bar, which was granted; and on the 12th day of January, 1922, he filed the petition in prohibition in this court. The alternative writ was granted, respondent made return thereto, a commissioner to take testimony was appointed, and the same was taken. Included therein is a transcript of the record of the proceedings in the first case, which had been dismissed.

The propriety of the trial court's action in regard to the last-mentioned matter may, in the determination of the pertinent issues, become a subject for consideration.

I. Only an absence or an excessive exercise of jurisdiction will authorize prohibition. This rule as applied to the facts at bar will enable it to be determined whether the writ herein should be made permanent. The general jurisdiction of the circuit court over cases involving a violation of the law concerning the use and possession of intoxicating liquors is conferred by statute (section 6594b, Laws 1921, p. 415), and a discussion of that power is therefore rendered unnecessary. There remains, however, the question as to whether the court, although having a general jurisdiction over this class of cases, has exceeded it in the original action upon which this proceeding is based. State ex rel. Bernero v. McQuillin, 246 Mo. 517, and cases p. 532, 152 S. W. 347.

The writ prayed for cannot be made to perform the functions of an appeal or a writ of error. An attempt to secure its use in that behalf, as indicated by the record, renders a restatement of the rule relevant. State ex rel. v. Fort, 210 Mo. 525, and cases, 109 S. W. 737; State ex rel. Buckingham v. Kimmel, (Mo. App.) 183 S. W. loc. cit. 652; State ex rel. Aiken v. Buckner (Mo. App.) 203 S. W. loc. cit. 243.

A material question confronting us before considering defendant's contentions, and one which it seems will suffice to determine this case, is discussed in State ex. rel. Thrash v. Lamb, 237 Mo. 437, 141 S. W. 665. It was held in that case that the question as to whether the state at the relation of the prosecuting attorney of a county may maintain an action to abate a public nuisance was one to be raised and determined in the trial court, and that it did not go to the jurisdiction of the court; and as a consequence its decision thereon did not furnish a basis for prohibition to restrain the court from the further exercise of jurisdiction in the case.

Regardless of this ruling, however, we have reviewed in their order the defendant's contentions. It is urged that the trial court exceeded its authority in not sustaining the application for a change of venue in the first suit brought by the prosecuting attorney, which was dismissed by him with the approval of the court. The prosecuting attorney in bringing the suit was acting in his official capacity, and, as a consequence, he was clothed with such discretion as to authorize him to dismiss the proceeding if, in his judgment, such course was for the best interests of the public. Empowered to thus dispose of the action, controversy as to the regularity of that proceeding is foreclosed; and the presentation and discussion of the court's action in that behalf are irrelevant. No adjudication having been made in the first case other than the judgment of dismissal, the parties were left to litigate the issues as though no action had been commenced. Harrison v. Remington Paper Co., 140 Fed. 385, 72 C.. C. A. 405, 3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314.

II. It is further contended that the trial court exceeded its powers in refusing to give the defendant time to prepare and file an application for a change of venue in the second case before granting the temporary restraining order prayed for by the prosecuting attorney. Whether or not this was a proper exercise of the court's powers is rendered unnecessary of solution by the defendant's own action. The record discloses that the defendant, upon the entry of the temporary restraining order by the court, filed the application for a change of venue, but immediately thereafter withdrew the same and filed a motion to dismiss the temporary order. This constituted an abandonment of the application and a waiver of objections to the validity of the court's action.

The ruling of a trial court will not be held to be error where it appears that the matter ruled upon was abandoned by the complaining party in pursuing another and different course from that upon which the...

To continue reading

Request your trial
31 cases
  • Nettleton Bank v. Estate of McGauhey
    • United States
    • Missouri Supreme Court
    • 4 de fevereiro de 1928
    ... ... 5, Art. VI) which went into effect November 19, 1884. [State v. Kyle, 166 Mo. 287, 295 et seq., 65 S.W. 763.] Starting from that time and looking over the cases decided since, it appears that the Supreme Court ... Unless a court have that, it cannot pass upon the sufficiency of the pleadings. [State ex rel. v. Shain, 297 Mo. 381, 248 S.W. 591; 15 C.J. 734, Sec. 35.] If the judgment rendered determine title, that is sufficient to classify the controversy, and ... ...
  • City of St. Louis v. Friedman
    • United States
    • Missouri Supreme Court
    • 13 de dezembro de 1948
    ... ... injunction. Respondent, therefore, had a full, complete and ... unembarrassed remedy at law in the manner pointed out in its ... ordinance. State ex rel. Crow v. Cantly, 207 Mo ... 439, 105 S.W. 1078; Evans v. Roth, 356 Mo. 237, 201 ... S.W.2d 357; Kansas City Gunning Co. v. Kansas City, ... State ex rel. v ... Woolfolk, 190 S.W. 877, 269 Mo. 389; Clark v. Crown ... Drug Co., 152 S.W.2d 145, 348 Mo. 91; State ex rel ... v. Shain, 248 S.W. 591, 297 Mo. 369. (6) Metal, ... worn-out, obsolete, broken, and cut iron or dismantled ... machinery, and parts thereof, entirely unfit ... ...
  • Nettleton Bank v. McGauhey's Estate
    • United States
    • Missouri Supreme Court
    • 4 de fevereiro de 1928
    ... ... constitutional amendment of 1884 (Sec. 5, Art. VI) which went ... into effect November 19, 1884. [State v. Kyle, 166 ... Mo. 287, 295 et seq., 65 S.W. 763.] Starting from that time ... and looking over the cases decided since, it appears that the ... subject-matter. Unless a court have that, it cannot pass upon ... the sufficiency of the pleadings. [State ex rel. v. Shain, ... 297 Mo. 381, 248 S.W. 591; 15 C. J. 734, Sec. 35.] If the ... judgment rendered determine title, that is ... sufficient to classify the ... ...
  • Leimer v. Hulse
    • United States
    • Missouri Supreme Court
    • 3 de janeiro de 1944
    ... ... derived therefrom constitute both liberty and property and ... falls within the inhibitions of the Constitutions, both State ... and Federal. The trial court erred in subverting the vested ... rights of plaintiff in error. Poole & Creber Market Co ... v. Breshears, ... 907, 63 S.W.2d ... 672; In re Sparrow, 338 Mo. 203, 90 S.W.2d 401; ... In re Pate, 107 S.W.2d 157; State ex rel. Clark ... v. Shain, 343 Mo. 542, 122 S.W.2d 282. (3) The ... information in this cause states a cause of action in ... disbarment. To state a cause of action in ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT