State ex rel. South Missouri Pine Lumber Company v. Dearing

• Citation: 79 S.W. 454,180 Mo. 53
• Parties: THE STATE ex rel. SOUTH MISSOURI PINE LUMBER COMPANY, Plaintiff, v. DEARING, Judge, et al
• Decision Date: 24 February 1904
• Court: United States State Supreme Court of Missouri

79 S.W. 454

180 Mo. 53

THE STATE ex rel. SOUTH MISSOURI PINE LUMBER COMPANY, Plaintiff, v. DEARING, Judge, et al

Supreme Court of Missouri

February 24, 1904

Rule made absolute.

Johnson Rusk & Stringfellow and Robert A. Holland, Jr., for relator.

The trial court, notwithstanding it found that there was no equity in the bill, had the undoubted power by its decree to preserve the status quo pending the appeal in order that irremediable injury might not be inflicted upon the plaintiff. It having been shown to the satisfaction of the court, and so found that the Crommers were insolvent, to leave them free to enforce the collection of the notes, the cancellation of which was an important part of the relief sought in plaintiff's bill, would operate as a practical denial of plaintiff's right to an appeal. In making the order continuing the injunction pending the appeal, the trial court was not only acting within its clear legal right, but was exercising a sound discretion, and any other action on its part would have been oppressive. Hovey v McDonald, 109 U.S. 161; Leonard v. Ozark Land Co., 115 U.S. 465; Reynolds v. Iron Silver Mine Co., 33 F. 354; Knox County v. Harshman, 132 U.S. 14; Min. Co. v. Eureka Hill Mining Co., 12 P 660; Ex parte Planters, etc., 50 Ala. 390; McMichael v Eckman, 26 Fla. 43; Neiser v. Thomas, 46 Mo.App. 52; State ex rel. v. Dillon, 96 Mo. 56; Parker v. Judges Circuit Court, 25 U.S. 561.

M. R. Smith, W. S. Anthony and O. L. Munger for respondents.

(1) If the circuit court of the city of St. Louis never acquired jurisdiction of the subject-matter of the suit between the South Missouri Pine Lumber Company, plaintiff, and Wm. Crommer et al., defendants, it will not be seriously contended that there is any conflict of jurisdiction between it and the Wayne County Circuit Court. Defendants assert that on the face of the pleadings in this proceeding, it is evident that title to the real estate situate in Wayne, Carter and Butler counties, was involved and an issue to be tried, and hence the circuit court of St. Louis city never had jurisdiction of the subject-matter of the case, and all of its decrees and orders made therein were nullities. R. S. 1899, sec. 564; Vogelsmeier v. Prendergrast, 137 Mo. 286; Bray v. Marshall, 66 Mo. 122; Parlin, etc., Co. v. Horn, 145 Mo. 119; Overton v. Overton, 131 Mo. 559; Vandergriff v. Brock, 158 Mo. 686. (a) A suit to cancel a deed of trust alleged to have been procured by fraud is a suit involving title to be tried. Nearen v. Bakewell, 110 Mo. 646; Overton v. Overton, supra; Hanna v. South St. Joseph Land Co., 126 Mo. 9; Brown on Jurisdiction, sec. 21a. (b) If the St. Louis City Circuit Court had no jurisdiction of the subject-matter involved and to be tried of the suit brought in the Wayne County Circuit Court by the Crommers, its decree and orders were invalid, and hence no conflict of jurisdiction exists. State ex rel. v. Ross, 122 Mo. 460; Railroad v. Wear, 135 Mo. 250; Thompson v. Tracy, 61 N.Y. 37; Appo v. People, 20 N.Y. 531; Morris v. Lenox, 8 Mo. 252; State ex rel. v. Walls, 113 Mo. 42. (2) The dissolution of a temporary restraining order is not revived and continued by an appeal. Authorities under point 1. (3) If the St. Louis City Circuit Court had no authority to amend its decree by reviving and continuing the injunction against the Crommers, during the appeal, such amendment is void, and being void, defendant, Judge Dearing, has in no way interfered with the jurisdiction of that court, and therefore the rule should be discharged. The amendment was void. Pocantico, etc., Co. v. Low, 21 Misc. (N. Y.) 173; Fellows v. Hermans, 13 Abb. Prac. (N. S.) 9; Spears v. Matthews, 66 N.Y. 127; Cowell v. Bank, 4 Supp. (N. Y.) 6; Powers v. Chabot, 93 Cal. 266; 2 Cyc. Law & Proced., 926, note (55); Halsey v. Flint, 15 Abb. Pr. (N. Y.) 367; Butler v. Davis, 52 Tex. 74; Dusenberry v. Keily, 85 N.Y. 388; Mills v. Parkhurst, 5 N.Y.S.

BRACE, J. Burgess, J., absent.

OPINION

In Banc

Prohibition.

BRACE J.

This is a proceeding in prohibition instituted in this court in which the questions to be determined are raised by demurrer to the returns of the respondents.

The facts admitted by the pleadings, material to the present inquiry, are in substance as follows:

In a suit in equity brought by the relator company in the St. Louis City Circuit Court on the 26th of March, 1902, against William Crommer, William F. Crommer, E. P. Ewart, S. C. Newhouse and S. J. Malugan, in which the relator company sought a discovery of, an accounting for, and the recovery of the value of certain shares of relator's capital stock and other valuable property which it was alleged the said Ewart and Newhouse had received by means of a fraudulent conspiracy by them entered into with the said Crommers, whereby in the promotion of the organization of said company, a lumber plant, consisting of 7,500 acres of land situate in the counties of Carter, Wayne and Butler, and other property appurtenant to and connected therewith, contracted for by said promoters for the sum of $ 21,000, was fraudulently sold by the said Crommers to the relator company for the sum of $ 37,250, the relator in its petition, in which the fraudulent acts complained of are set out in detail and at great length, in substance prayed for a personal judgment against the said William Crommers, Williams F. Crommers, E. P. Ewart and S. C. Newhouse for the value of the property alleged to have been so fraudulently obtained, for damages for fraudulent misrepresentations as to the quality and value of said lumber plant and further prayed "that six notes of one thousand dollars each" secured by a deed of trust on said lands given by the relator in part payment of the purchase money for said property and held by the said Crommers "be cancelled, set aside and for naught held," and further "that all of the defendants, their servants, agents, attorneys and employees be enjoined from selling or attempting to sell on the 11th of April, 1902, or at any other time, the property described in said deed of trust, or any part thereof, or from attempting to collect said six notes of one thousand dollars each, and that in the meantime a temporary writ of injunction be issued enjoining and restraining all of said defendants, their agents, servants and employees from selling or attempting to sell the property described in said deed of trust or any part thereof, or from transferring said six notes of one thousand dollars each, or any of them, or from attempting to collect the same and for such other and further orders and relief as to the court may seem proper, the premises considered." The said Malugan was made a party defendant in the action because, as substitute trustee, he, at the request of the Crommers, had advertised said real estate for sale under said deed of trust on the 11th of April, 1902. Upon the filing of the petition and the execution of an injunction bond in the sum of $ 6,000, with approved security, a temporary injunction was issued.

Afterwards the defendants in due time filed answer to plaintiff's petition, the answers of Ewart, Newhouse and Malugan being in the nature of a general denial and the answer of the Crommers putting in issue the allegations of the petition and containing a cross-bill in which they asked for judgment upon said notes and the foreclosure of said deed of trust. Upon these answers issue was duly joined by reply.

"Afterwards said cause coming on for trial upon the issues joined before Honorable James R. Kinealy, Judge of Division Number Ten of the Circuit Court of the City of St. Louis, and on the 23rd day of June, 1903, the said judge of said court, after hearing the evidence in said cause, found the issues in favor of the defendants and made an order dismissing plaintiff's bill, and found the issues against the defendants upon their cross bill and made an order dismissing said cross-bill.

Said order and judgment of said court was in words and figures as follows, to-wit:

"'Now at this day this cause coming on for hearing come the parties herein by their respective attorneys and submit this cause to the court upon the pleadings and evidence adduced, and the court, having heard and duly considered the same, doth order and adjudge that the temporary injunction granted in this cause on March 26, 1902, be and the same is hereby dissolved in every particular. And the court doth find the issues joined in the plaintiff's petition herein in favor of defendants. It is thereupon considered and adjudged by the court that the plaintiff take nothing by its suit in this behalf and that defendants go hence without day and recover of plaintiff and the American Surety Company of New York surety on that injunction bond, their costs and charges herein expended, and that execution shall issue therefor. And the court doth further find the issues joined in the cross-bill of defendants William Crommer and William F. Crommer in favor of the plaintiff. It is therefore considered and adjudged by the court that the defendants, William Crommer and William F. Crommer, take nothing by their suit on the cross-bill herein, because of want of jurisdiction in this court over the subject-matter thereof.'

"On the day following, June 24, 1903, the said Crommers brought suit in the circuit court of Wayne county against the South Missouri Pine Lumber Company upon the said six notes held by them against the company, in which they sought to recover judgment for the amount of said notes, and in the petition they also prayed for a decree foreclosing their deed of trust, and asked that a receiver be appointed for the company, alleging insolvency, mismanagement and other grounds as a reason for the appointment of a receiver.

"On the day...