State ex rel. United Brick & Tile Co. v. Wright

• Decision Date: 02 July 1936
• Citation: 95 S.W.2d 804,339 Mo. 160
• Parties: State of Missouri at the relation of United Brick & Tile Company, a Corporation, and Ray C. Burch, Secretary and Treasurer of said Corporation, Relators, v. Emory H. Wright, Judge of Division No. 1 of the Circuit Court of Jackson County
• Court: Missouri Supreme Court

95 S.W.2d 804

339 Mo. 160

State of Missouri at the relation of United Brick & Tile Company, a Corporation, and Ray C. Burch, Secretary and Treasurer of said Corporation, Relators, v. Emory H. Wright, Judge of Division No. 1 of the Circuit Court of Jackson County

Supreme Court of Missouri

July 2, 1936

Writ of certiorari quashed.

Flavel Robertson, Edgar Shook and Kenneth I. Fligg for relators.

(1) The writ of certiorari was properly issued because the respondent had awarded a peremptory writ of mandamus, unauthorized by law, in a case in which there was no adequate remedy by appeal or writ of error. State ex rel. Hamilton v Guinotte, 156 Mo. 513, 57 S.W. 281, 50 L. R. A. 787; State v. Mosman, 231 Mo. 474, 133 S.W. 38; State v. Westhues, 315 Mo. 672, 286 S.W. 396; State ex rel. Shartel v. Westhues, 320 Mo. 1093, 9 S.W.2d 612. (2) There was no adequate remedy by appeal or writ of error because the statutes denied a supersedeas and provided for fine and receivership for a failure to obey the writ. Secs. 4579, 4580, R. S. 1929. (3) The peremptory writ of mandamus granting Pratt the right to inspect the books of United Brick & Tile Company (a relator here) in which he owned no stock was erroneously granted because the corporate integrity of a subsidiary corporation must be respected unless fraud or injustice is shown to result from the operations of the subsidiary and its parent corporation. When fraud or injustice results from the operations of a subsidiary and its parent corporation, a suit based upon a disregard of corporate forms should be brought in equity and not at law, but under the allegations and findings in this suit, had it been brought in equity rather than at law, Pratt was not entitled to inspect the books of United Brick & Tile Company. 3 Cook on Corporations (8 Ed.), secs. 663, 664, p 2566; 14 C. J., pp. 52, 53; Sec. 4940, R. S. 1929; State ex inf. Gentry v. Long-Bell Lbr. Co., 321 Mo. 461, 12 S.W.2d 64; Natl. Enameling & Stamping Co. v. Granite City & M. B. L., 199 S.W. 238; Berkey v. Ry. Co., 244 N.Y. 84, 155 N.E. 58; Kingston Dry Dock Co. v. Lake Champlain Transportation Co., 31 F.2d 265; Pittsburgh & Buffalo Co. v. Duncan, 232 F. 584; In re Watertown Paper Co., 169 F. 252; New York Trust Co. v. Carpenter, 250 F. 668; 4 C. J. 778; Crowell-Spencer Lbr. Co. v. Hill, 211 Mo.App. 280 242 S.W. 427; 33 C. J. 1171; Sec. 952, R. S. 1929; Scheer v. Trust Co., 330 Mo. 149, 49 S.W.2d 135; Idalia Realty & D. Co. v. Ry. Co., 219 S.W. 923; Lesan v Castleman, 165 Mo.App. 575, 148 S.W. 433, 265 Mo. 345, 177 S.W. 597; Williams v. Freeport Sulphur Co., 40 S.W.2d 817; Wood Estate Co. v. Chanslor, 209 Cal. 241, 286 P. 1001; Pullman's Palace Car Co. v. Railroad Co., 115 U.S. 587, 29 L.Ed. 499; United States v. Strang, 254 U.S. 491, 65 L.Ed. 368; Postal Tel.-Cable Co. v. Darrow, 250 F. 581, cert. den. 248 U.S. 562, 63 L.Ed. 423; Marsh v. So. Railroad Corp., 230 Mass. 483, 120 N.E. 120; Martin v. Martin Co., 88 A. 612; Bailey v. Boxboard Products Co., 314 Pa. 45, 170 A. 127; State v. Sherman Oil Co., 31 Del. 570, 117 A. 122; Woodworth v. Old Second Natl. Bank, 144 Mich. 338, 117 N.W. 893; Lisle v. Shipp, 96 Cal.App. 264, 273 P. 1103; Majestic Co. v. Orpheum Circuit, 21 F.2d 720.

D. C. Chastain, A. Z. Patterson and Clyde Taylor for respondent.

(1) The writ of certiorari must be quashed because there was no final judgment in the lower court. At the time this writ was issued there was then pending in the lower court a motion for a new trial and motion in arrest of judgment. It is fundamental in the law of this State that while a motion for a new trial or in arrest of judgment is pending there is no final judgment and that the writ of certiorari will run to nothing except a final judgment. A writ of certiorari lies only to a final judgment. The record discloses that there are pending before the lower court a motion for a new trial and a motion in arrest of judgment. A judgment is not a finality until after such motions are overruled by the lower court. That certiorari will not lie to anything but a final judgment and that the judgment is not final where a motion for a new trial or in arrest of judgment is pending is the settled law of this State. Where a motion for a new trial or in arrest of judgment is final, a judgment is not final until after said motions have been overruled: State ex rel. Wabash Railroad Co. v. Ryan, 115 Mo.App. 421; State ex rel. v. Smith, 104 Mo. 423; Garesche v. Emerson, 31 Mo. 258; Doerschuk v. Locke, 51 S.W.2d 64; Cox v. Stove Co., 58 S.W.2d 701; Cox v. Schaab, 67 S.W.2d 790; Mathewson v. Larson, 209 S.W. 295. The writ of certiorari will not lie unless there is a final appealable order in the lower court: State ex rel. Mo. Pac. Railroad Co. v. Edwards, 104 Mo. 127; State ex rel. Walbridge v. Valliant, 123 Mo. 532; State v. Schneider, 47 Mo.App. 675; State ex rel. v. Circuit Court, 168 Mo.App. 34; State ex rel. Shaw v. Pfeffle, 220 Mo.App. 676, 293 S.W. 516; State ex rel. v. Pearcy, 325 Mo. 335, 29 S.W.2d 89. (2) The findings of fact are not a part of the record proper and are not before this court for any purpose whatsoever. Sec. 952, R. S. 1929; State ex rel. v. Lusk, 93 Mo.App. 680, 67 S.W. 711; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437; Perringer v. Unknown Heirs of Raub, 300 Mo. 535, 254 S.W. 703; State ex rel. v. Keithley, 204 S.W. 24; Webster Groves v. Hunt, 234 S.W. 1006; Teasdale v. St. Louis Trust Co., 280 S.W. 76; State ex rel. v. Turner, 17 S.W.2d 986. (3) The writ of certiorari brings nothing before the reviewing court except the record proper. There is nothing before the court except the record proper. The lower court had jurisdiction of the parties and of the subject matter and the judgment is supported by the petition. Since there is no error on the face of the record proper, the writ of certiorari should be quashed: State ex rel. v. Patterson, 229 Mo. 368; State ex rel. v. Reynolds, 190 Mo. 588; State ex rel. v. St. Louis, 207 Mo. 366; Hannibal Railroad v. State Board, 64 Mo. 308; House v. Clinton County Court, 67 Mo. 523; State ex rel. v. Williams, 70 Mo.App. 241; Stone v. New York, 25 Wend. 134; State ex rel. v. Dowlin, 50 Mo. 134; State ex rel. v. Board, 108 Mo. 242; State ex rel. v. Cauthorn, 40 Mo.App. 96; State ex rel. v. Mayor, 57 Mo.App. 192; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Wells, 210 Mo. 621; State ex rel. v. Clark, 9 S.W.2d 638; School District v. Pace, 113 Mo.App. 140; State ex rel. Chase v. Calvird, 24 S.W.2d 111, 324 Mo. 429; State ex rel. v. Ossing, 79 S.W.2d 255; State ex rel. Shartel v. Skinker, 25 S.W.2d 472, 324 Mo. 955. (4) Since there is nothing here but the record proper, the sole questions that can be presented are, did the lower court have jurisdiction of the subject matter and of the parties, did the petition state a cause of action and does the petition support the judgment? Osborn v. Benbow, 38 Mo.App. 25; Oakes v. School District, 98 Mo.App. 163; Orchard v. Bank, 121 Mo.App. 338; Miller v. Falloon, 187 S.W. 839; Growney v. O'Donnell, 272 Mo. 167, 198 S.W. 863; Advance Thrasher Co. v. Speak, 167 Mo.App. 470, 151 S.W. 235; Layne v. Miners Co., 180 Mo.App. 684, 163 S.W. 569; Ryan v. Growney, 125 Mo. 474; Roden v. Helm, 192 Mo. 71; Bruner v. Johnson, 228 S.W. 92; Hearst v. Trust Co., 5 S.W.2d 3.

OPINION

Leedy, J.

This is an original proceeding in certiorari whereby relators seek to have quashed the judgment of Division One of the Circuit Court of Jackson County, at Kansas City, in a certain cause numbered 442,333, and entitled "The State of Missouri, at the relation of William D. Pratt, plaintiff, v. United Brick Corporation and United Brick and Tile Company, each being a corporation, and Ray C. Burch, secretary and treasurer of said corporations, defendants (respondents)." Petitioner therein was awarded a peremptory writ of mandamus compelling an inspection of the books and records of both corporate defendants (respondents).

United Brick Corporation is a holding company, and as such owns and controls the entire capital stock of United Brick & Tile Company, which latter company is the operating company, and is engaged in the business of manufacturing and selling brick and tile, and similar products, and owns some thirty-two properties, two of which are located in this State. United Brick Corporation engages in no other business than that of a holding company, and its sole source of income is by virtue of its ownership of the aforesaid stock. The officers of both corporations are in general identical, but not entirely so. Both maintain a common office in Kansas City, Missouri. Pratt, the petitioner in the mandamus suit in the circuit court, is a stockholder in the holding company. Neither the holding company, nor Ray C. Burch, as secretary-treasurer thereof (respondents in the suit below) are parties to this proceeding. The relators here are United Brick & Tile Company (the operating company), and Ray C. Burch, as its secretary-treasurer.

Relators take the position that "the question of law raised by the facts in this case is the right of a court to disregard the separate corporate entity of a subsidiary corporation and to award to a stockholder in a parent corporation the right to examine the books and records of a subsidiary corporation in which he owns no stock, absent the allegation or finding of such facts as the court will recognize as a proper justification for disregarding the corporate entity in order to prevent fraud or injustice." Such proposition is admittedly one of first impression in this State, but in the view we take of the case, under the record before us, the issue to be determined is somewhat narrower than as stated.

I. At the threshold of the case, we are met with respondent's insistence that the writ was prematurely issued...