C. H. Albers Commission Co. v. Milliken

• Decision Date: 16 July 1912
• Citation: C. H. Albers Commission Co. v. Milliken, 150 S.W. 712, 245 Mo. 368 (Mo. 1912)
• Parties: C. H. ALBERS COMMISSION CO. v. MILLIKEN et al.
• Court: Missouri Supreme Court

150 S.W. 712

245 Mo. 368

C. H. ALBERS COMMISSION CO. v.MILLIKEN et al.

Supreme Court of Missouri, Division No. 2.

July 16, 1912.

Rehearing Denied October 9, 1912.

1. INJUNCTION (§§ 129, 163)—DISMISSAL OF ACTION—MOTIONS TO DISSOLVE.

Where a petition states grounds which entitle plaintiff to relief at law or in equity, dissolution of a temporary injunction, improvidently granted, does not end the case, yet the sufficiency of the petition may be attacked on motion to dissolve the temporary injunction as well as by a general demurrer, and where the motions to dissolve a temporary injunction charged that the petition did not state facts sufficient to constitute a cause of action, or to entitle plaintiff to any relief at law or in equity, the court had power to adjudicate the sufficiency of the petition, and, it having been determined on such motion that no cause of action was stated by the plaintiff, tie cause was properly, dismissed on defendant's motion; plaintiff not being entitled to another hearing thereon.

2. INJUNCTION (§ 144)—TEMPORARY INJUNCTION.

When a petition states no sufficient grounds for relief, no injunction should issue; and, if one is issued, it should be dissolved.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by the C. H. Albers Commission Company against John T. Milliken and others.From a judgment for defendants, plaintiff appeals.Affirmed.

This is an action demanding equitable relief against certain grain contracts entered into between plaintiff and defendants as members of the Merchants' Exchange of St. Louis.In the year 1903the plaintiff instituted five suits in the circuit court of St. Louis city against the Merchants' Exchange and sundry members thereof, alleging certain wrongful conduct on the part of defendants, which resulted in so monopolizing or "bulling" the wheat market that plaintiff was unable to purchase enough wheat to fill large contracts theretofore made by it for future delivery, whereby it was about to lose large sums of money, which it had put up in the National Bank of Commerce (a defendant herein) as margins to guarantee the fulfillment of its said contracts of sale.In its petitions, plaintiff prayed the cancellation of the contracts of sale made by it, that the money which it had put up in the bank as margins be returned, and that defendants and the officers of the Merchants' Exchange be enjoined from in any manner enforcing said contracts for sale of wheat entered into by plaintiff, and from applying the margins put up by plaintiff toward liquidating said contracts.The five suits were by an order of the circuit court consolidated, and a temporary injunction issued as prayed.Upon a motion to dissolve the temporary injunction, the trial court heard the parties, taking some 700 pages of testimony, touching all the allegations of the petition, answer, and motion to dissolve, and made an order dissolving the temporary injunction.From the order dissolving the temporary injunction, plaintiff appealed to this court, where the order of the circuit court was in all things affirmed in an able opinion by Valliant, J. (205 Mo. 105, 103 S. W. 523, 11 L. R. A. [N. S.] 1003), where a more complete statement of the case will be found.

When the case was first here, the petitions of plaintiff and the evidence offered to support same were most carefully considered, and it was ruled that no cause for equitable relief had been made against the defendants either by the petitions or evidence.After the case was disposed of in this court, the defendants, on July 24, 1907, filed the following motion in the circuit court to dismiss the consolidated causes: "Now come defendants and move the court to dismiss the above-entitled causes, for the reason that this court is without jurisdiction to determine the same, and that there is no equity in the said petitions for the consideration by a court of equity, and that it has been so adjudged by the Supreme Court of the state of Missouri in these causes in the appeal heretofore taken by plaintiffs from the order of this court dissolving the temporary injunction herein, as will appear from the opinion of said court on file in this cause.Wherefore defendants ask that said causes be dismissed."Which motion was by the circuit court sustained and the plaintiff's consolidated causes of action dismissed, whereupon the plaintiff, after a timely effort to secure a new trial below, again appeals to this court.After this court's decision on...