Dahlberg v. Fisse

• Citation: 40 S.W.2d 606,328 Mo. 213
• Parties: B. G. Dahlberg v. Frank H. Fisse, Referee, Appellant
• Decision Date: 24 June 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 606

328 Mo. 213

B. G. Dahlberg v. Frank H. Fisse, Referee, Appellant

Supreme Court of Missouri

June 24, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Charles W Rutledge, Judge.

Affirmed.

Robert Burnett and Samuel H. Liberman for appellant.

(1) The order made by the referee in the main case was within the purview of the second amended petition and followed the construction placed upon the same by the court appointing him. 1 R. C. L. 224; 1 C. J. 613-614; Pacific Co. v Bridge & Iron Co., 286 Mo. 112; National Union Fire Ins. Co. v. Nevils (Mo. App.), 274 S.W. 503; Taylor v. Times Newspaper Co., 83 Minn. 523, 85 Am. St. 473; Order of Judge Landwehr overruling demurrer; Order of Judge Frey overruling demurrer; Sherman v. Jenkins, 34 N.Y.S. 86; Eastern Railway Co. v. Tutuer, 127 Wis 382; Ford v. Ford, 53 Barb. (N. Y.) 525; 17 Ency. Plead. & Pract. 1031. (2) The order made by the referee in the main case is not subject to review by writ of prohibition. State ex rel. Hoffman v. Scarritt, 128 Mo. 331; Schubach v. McDonald, 179 Mo. 163; State ex rel. Ward v. McQuillin, 262 Mo. 256; State ex rel. Elam v. Henson (Mo.), 217 S.W. 17; State ex rel. Manufacturing Co. v. Lyon (Mo.), 12 S.W.2d 447. (3) The denial by the Supreme Court of the application for a writ of prohibition upon the same subject-matter was conclusive. Custer v. Kroeger, 313 Mo. 130. (4) The orders of the circuit court in the main case overruling the demurrers to the second amended petition are not subject to collateral attack by writ of prohibition in a separate proceeding. State v. Randazzo (Mo.), 300 S.W. 755. (5) Plaintiff is estopped by his conduct in the main case from asserting that the main case was not one in equity. Bensieck v. Cook, 110 Mo. 173; Kostuba v. Miller, 137 Mo. 161; Kessner v. Phillips, 189 Mo. 515; Jarboe v. Jarboe, 227 Mo. 59; Michaels v. Olmstead, 157 U.S. 198.

E. T. & C. B. Allen for respondent.

(1) A referee appointed by the circuit court is a judicial officer subject to the control of a writ of prohibition. State ex rel. v. Short, 304 Mo. 528; Henshaw v. Cotton, 127 Mass. 60; People v. Carrington, 5 Utah, 531; State v. Stockhouse, 14 S.C. 417. (2) Bills of discovery were superseded by the statute providing for the taking of depositions of the adversary and production of book and papers, almost a century ago. Bond v. Worley, 26 Mo. 254; Eck v. Hatcher, 58 Mo. 235; Tyson v. Building Assn., 156 Mo. 588. (3) The referee's "order and summons" (interlocutory decree) compels Dahlberg to make discovery and is beyond his jurisdiction. The petition contains no allegation of the necessity of or prayer for discovery. It is not the subject-matter thereof. Authorities under Point 2. (4) The statement of an account which is required as the first pleading upon an accounting in equity is one thing, and the evidence in support or in dispute of an item thereof, is quite another. The referee had no power to require a statement, the effect of which is evidentiary, only, as he did. Beckwith v. Iron Range Co., 207 F. 853; Cushman Mfg. Co. v. Grames, 225 F. 887; Lycan v. Miller, 56 Mo.App. 82. (5) The gist of an action in equity for an accounting is the inability of the plaintiff to procure it himself. Johnston v. Silvers, 196 P. 515; Wetzstein v. Mining Co., 226 Mont. 456; Kennicot v. Scarritt, 37 Ill.App. 438; Seattle Bank v. District, 20 Wash. 373; Alwyn v. Morley, 108 P. 778; Commonwealth Trust Co. v. Frick, 120 F. 690; Babbitt v. Tewsbury, 60 F. 86; Clements v. Cooper, 136 N.Y. 98. (6) The second amended petition and the evidence affirmatively established that an accounting of the railroad refunds was not necessary. Curry, himself, prepared such a statement of the account. Sec. 1258, R. S. 1919; Paper Co. v. Publishing Co., 156 Mo.App. 187; Hassett v. Rust, 64 Mo. 320; Reed v. Milk Co., 187 Mo.App. 544. (7) The petition contains no allegation of a fiduciary relation, the necessity of discovery or an accounting. Curry was simply an employee of Dahlberg to secure contracts for refunds of overcharges to be paid by a cash commission upon the refund collected. Wetmore v. Crouch, 55 Mo.App. 441; Wesly v. Bowers, 58 Mo.App. 422; Vogelsang v. Plaster Co., 147 Mo.App. 588. (8) There is no remedy against a void interlocutory decree except prohibition. The invasion of a defendant's right and damages therefrom will occur before any other remedy can be had. State ex rel. v. Wood, 316 Mo. 1; State ex rel. v. Elkins, 130 Mo. 109; State ex rel. Nisely v. Jones, 274 Mo. 374; State ex rel. v. Dearing, 291 Mo. 176. (9) The referee in issuing the summons did, in that particular case, something which he had no judicial power to do and the writ of prohibition was properly allowed. State ex rel. v. McQuillin, 246 Mo. 532; State ex rel. Terminal Railroad Assn. v. Tracy, 237 Mo. 118; State ex rel. v. Garrett, 128 Mo. 338; State ex rel. v. Muench, 217 Mo. 137. (10) The judicial power of the referee to direct discovery or accounting cannot be based upon the waiver of counsel. State ex rel. v. Muench, 217 Mo. 141; State ex rel. v. McQuillin, 262 Mo. 256.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a proceeding in the Circuit Court of the City of St. Louis for a writ of prohibition to prevent appellant, as referee, in the case of Charles C. Curry, plaintiff, v. B. G. Dahlberg, defendant, pending in the circuit court of said city, from enforcing an order made by him in that case.

From the record it appears that on November 20, 1923, the case of Curry v. Dahlberg was pending in the circuit court, and that on that date a second amended petition was filed. The character of the original petition is not shown. It was alleged in the second amended petition that in 1914 Dahlberg, a commerce expert, made an agreement with Curry providing that Curry was to assist him to secure contracts for the handling of claims for refunds of shippers of forest products over various railroads. The basis of these claims were freight-rate overcharges by railroads. Curry was acquainted with many such shippers. It was alleged that the agreement provided that on all contracts which Dahlberg secured subsequent to July 9, 1914, either with or without the assistance of Curry, except contracts secured through certain specified sources, Dahlberg was to pay Curry twenty per cent of the gross compensation received by him from the claimants, except that, on claims which were not settled until after court trial, Curry was to receive only fifteen per cent, and on claims which went to trial in the United States Supreme Court he was to receive only ten per cent.

Curry in his petition alleged that he did actively engage in soliciting contracts and fully performed the agreement upon his part. He further alleged that under the agreement a very large number of contracts were secured from shippers; that a large number of the claims have been recovered by the claimants and the compensation received by Dahlberg; and that Curry's twenty per cent of this compensation became due. The petition then alleged that the claims on which recovery had been made and which form the basis of this action were against the St. Louis & San Francisco Railway Company. These claims were alleged to have been settled on the 26th day of June, 1917, by an agreement, marked "A," which was attached to and made a part of the petition by reference. It was stated that under this settlement compensation was paid to Dahlberg on October 5, 1917, aggregating $ 217,648.84, which was received partly in cash, partly in bonds, and partly in preferred and common stocks of the Railway Company. This settlement was without trial in court. Curry alleged that his twenty per cent of the compensation was $ 43,529.77 in cash and securities. An exhibit, containing a list of the shippers' claims settled under this agreement, was attached, marked "B," and made a part of the petition, showing the claims secured subsequent to July 9, 1914, in which Curry claimed to have an interest, which totaled $ 451,498.04, and also the claims collected by Dahlberg in which Curry had no interest. It also set out that $ 217,648.84 was the total of the compensation Dahlberg received and that the amount Curry claimed was $ 43,529.77. Demand for an accounting of the gross compensation received by Dahlberg and refusal to either render an account or pay were also alleged.

The prayer of the petition was for judgment for twenty per cent of the cash and securities received by Dahlberg which, taken at par, aggregate $ 43,529.77, with interest on Curry's proportion of the cash from October 5, 1927, and the dividends paid on the securities since that date, and that Dahlberg be required to account for and pay to plaintiff a sum represented by the difference between the market value of the securities at the date of judgment and the highest value of the same since October 5, 1917. The prayer further asked the court to rule Dahlberg to make a full and complete statement of all compensation which he received under the terms of the agreement, together with a full statement of all contracts covered by the agreement in process of liquidation and the gross amount of compensation which he is to receive therefrom if they are paid, and further asked for judgment for all sums rightfully due Curry, and asked the court to retain jurisdiction of the suit for the purpose of compelling Dahlberg to account to him for his rightful share of all compensation recovered by him when the same is paid to him.

Curry's first amended petition was the same as the second amended petition except that there was no allegation in it that an accounting had been demanded, and there was no prayer for an accounting or for any relief with reference to contracts in the process of liquidation and not...