The State ex rel. Monett Milling Company v. Neville

Citation57 S.W. 1012,157 Mo. 386
PartiesTHE STATE ex rel. MONETT MILLING COMPANY v. NEVILLE, Judge
Decision Date26 June 1900
CourtUnited States State Supreme Court of Missouri

Peremptory writ awarded.

A. W Lyon and Davis & Steele for relator.

(1) Mandamus will lie where court refuses to act and strikes case from the docket. The State ex rel. Bayha v Phillips, 97 Mo. 331; State ex rel. Huey v. The Cape Girardeau Court of Common Pleas, 73 Mo. 560; The State ex. rel. Schonhoff v. O'Bryan, 102 Mo. 254; The State ex rel. v. Wofford, 121 Mo. 62. (2) The original decree was interlocutory. The rendering of a personal judgment against the Monett Milling Company was deferred for future action and adjudication of the court. No report or confirmation of sale was had and does not dispose of question of cost. A decree is not final unless it decides and disposes of the whole merits of the litigation, and reserves no further questions or directions for the future judgment of the court, and so that it will be unnecessary to bring up the case again for the final decision of the court. Dockhart v. Rutgers, 45 Mo. 132; Butler v Lee, 33 How. Pr. 260; Mutual Life Ins. Co. v. Sturges, 21 N.J.Eq. 458; Garrish v. Black, 109 Mass. 474; Forbes v. Tuckerman, 115 Mass. 115; Williams v. Field, 2 Wis. 422; Dickenson v. Wise, 11 Paige 189. Williamson v. Field, 2 Barb. 283; Forgav v. Conrad, 6 How. 204. The decree is not final because it does not grant the relief contemplated by the bill. Bondurant v. Apperson, 4 Metc. 32; Philipps v. Alcorn, 4 J. J. Marsh 38; Johnson v. Everett, 9 Paige 636; Beebe v. Russell, 19 How. 283; McMurty v. Glascock, 20 Mo. 432. The recovery of judgment for the mortgage debt or any part of it after foreclosure, opens the foreclosure. 2 Jones on Mortgages (1 Ed.), sec. 1274. It is not now a question as to whether the circuit court of Barry county acted correctly or incorrectly in setting aside the original decree. "The only question in such case is, had the court or tribunal power under any circumstances to make the order or perform the act." State ex rel. v. McKee, 150 Mo. 233. Jurisdiction of subjectmatter means jurisdiction of similar actions. Rosenheim v. Hartsock, 90 Mo. 365; Posthlewaite v. Ghiselin, 97 Mo. 424; Railway v. Railway, 100 Mo. 59.

Geo. Hubbert, D. H. Kemp and Cloud & Davis for respondent.

(1) The action of the respondent in inspecting the record and determining the status of the case and declaring his lack of power, seems justified by the authorities; notwithstanding each party seemed willing for him to act, provided the act were the one desired by the party. "The court takes judicial notice of the state of a case as shown by its own records." Fears v. Riley, 148 Mo. 60; Parlin v. Hord, 145 Mo. 117; 1 Bailey on Juris., sec. 10. The record must determine the elements of supposed jurisdiction, and if it appear from the record that those elements or any of them were lacking, the previous action or decision of the court must be treated as void, and the question may be raised at any time or place. Presbyterian v. McIlhinney, 61 Mo. 540; McClanahan v. West, 100 Mo. 309; Laney v. Garbee, 105 Mo. 355; Laney v. Sweeney, 105 Mo. 360; Russell v. Grant, 122 Mo. 161; Stamps v. Bridewell, 57 Mo. 22; Brown v. Woody, 64 Mo. 547; Fisher v. Siekman, 125 Mo. 165; Hewett v. Weatherby, 57 Mo. 276; State v. St. Louis, 1 Mo.App. 503. (2) The original judgment of the Barry circuit court was a final judgment in its entirety and closed the case, so that it could no longer be said to be a pending action. Nor could that judgment be disturbed but by bill or petition in equity or by statutory motion in the nature of writ of error coram vobis, to neither of which classes of proceedings does the motion to set aside the judgment in question appear to belong. The decree of foreclosure passed upon and settled all the rights of all the parties, and nothing was left for the future but to give the decree effect, by executing the powers described and adjudged thereby. For in this State a judgment is a finality whenever it terminates the litigation between the parties on the merits of the case. R. S. 1889, sec. 2206; State ex rel. v. Woodson, 138 Mo. 513; 1 Blk. on Judgt., secs. 43, 44-48; 1 Frem. Judgt., sec. 22 et seq.; Myers v. Manny, 63 Ill. 211; Winthrop v. Meeker, 109 U.S. 180; 3 S.Ct. 111; Grant v. Phoenix Co., 106 U.S. 431; 1 S.Ct. 414; Mills v. Hoag, 7 Paige 18; 31 Am. D. 271; Teaff v. Hewitt, 1 Ohio St. 511; 59 Am. Dec. 634; Neall v. Hill, 16 Cal. 145; 76 Am. Dec. 508; Morris v. Morange, 38 N.Y. 172.

BURGESS, J. Gantt, C. J., and Sherwood, J., concur.

OPINION

Mandamus.

BURGESS J.

This is an original proceeding by mandamus begun in this court the purpose of which is to compel the respondent, judge of the circuit court of Greene county, to reinstate and to proceed with the trial of the cause of A. J. Webber v. Monett Milling Company, H. J. Webber, Submit M. Mills, Harry N. Mills and Alberta B. Mills, which is now depending in said circuit court of Greene county on a change of venue from the circuit court of Barry county where it was begun, but which said suit the respondent before the institution of this proceeding ordered and caused to be stricken from the docket and declined to entertain jurisdiction thereof and to proceed therewith.

On the 20th day of February, 1900, there was duly issued from this court an original writ of mandamus, directed to said Neville, as judge of the circuit court of Greene county, commanding him to forthwith set aside the order striking said cause from the docket, and to proceed to hear said cause, or that he appear and show cause before Division Two of the Supreme Court on the 10th day of April, 1900, why he should not do so.

On May 17, 1900, the respondent made return to said writ as follows:

"1st. That on the first day of the May term of the above circuit court, on the 14th day of May, 1900, the respondent, as presiding judge thereof, ordered and caused the case of A. J. Webber, plaintiff, v. Monett Milling Company et al., defendants, to be duly docketed, with the purpose and intention to exercise the jurisdiction of the respondent's court over the said cause and its subject-matter, on the record and pleadings therein.

"2d. That in pursuance of said purpose, respondent has received and filed in his said court the second amended answer of the relator as defendant company and amended motions of plaintiff and other defendants, and received the resignation of J. W. Vance as receiver and appointed a new receiver in his stead, and directed care and lease of the mill property in question, by consent of the parties, for the coming year.

"3d. That the respondent and his said court stand ready to and will exercise such further power and jurisdiction, according to his best judgment, as the law seems to require, upon the issues presented or to be presented by the parties under their pleadings, and has proceeded to hear and is ready to pass upon a motion that will determine the cause.

"4th. That respondent does not understand that he is required to decide in any particular way or to follow any special course in passing upon the issues or disposing of the cause by his legal judgment; and prays specific directions if any be intended by this Honorable Court, still waiving, however, technical writ and formal service thereof.

"Counsel for the parties disagree as to the directions; defendant's claiming that the order is to proceed to hear the case on its merits, plaintiff's counsel contending otherwise."

The action of Webber v. Monett Milling Company and others was begun in the circuit court of Barry county on the 6th day of February, 1897. It was alleged in the petition that plaintiff was the owner and assignee of certain promissory notes aggregating the sum of $ 8,500, theretofore executed by the Monett Milling Company to one A. D. Butler, and secured by deed of trust on said milling company's mill plant at Monett, Missouri, in which H. J. Webber was named as trustee, and that the said defendants, the Millses, claimed the title to the land on which the mill stood, and that there were other liens against said property, and prayed judgment against the said Monett Milling Company for the amount of said notes, and a foreclosure of said deed of trust.

On the 7th day of April, 1897, during the regular term of the Barry circuit court, T. H. Jeffries who was then president of the milling company, filed an answer to said petition denying generally all the allegations therein contained. On the next day following and during the same term, a cross bill was filed in said cause by the defendant Millses therein, in which they alleged that they were the owners of the land upon which the mill was located, and in effect that they had sold the land to the milling company for the sum of $ 1,500 and asked judgment for said amount, and that it be declared a vendor's lien against said premises.

Thereafter and on the same day a decree was rendered in said cause for the sale of said premises, providing for the distribution arising from sale among...

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