Farris v. Smithpeter

• Decision Date: 05 May 1914
• Docket Number: No. 1266.,1266.
• Citation: 180 Mo. App. 466,166 S.W. 655
• Parties: FARRIS et al. v. SMITHPETER et al.
• Court: Missouri Court of Appeals

166 S.W. 655

180 Mo. App. 466

FARRIS et al. v. SMITHPETER et al.

No. 1266.

Springfield Court of Appeals. Missouri.

May 5, 1914.

1. COSTS (§ 273) — COLLECTION — ENJOINING ENFORCEMENT OF FEE BILLS.

In analogy to the rule that an injunction will not issue against an execution issued from another court, an injunction will not lie to restrain a sheriff from enforcing a fee bill alleged to be void.

2. COSTS (§ 273)—FEES—COLLECTION—REMEDIES—"FEE BILL."

A "fee bill" is the proper process to collect fees due to officers and witnesses against a party for whom services are rendered.

3. EXEMPTIONS (§ 108) — LIABILITIES ENFORCEABLE AGAINST EXEMPT PROPERTY.

Exemptions are allowed to a fee bill debtor the same as to an execution debtor.

4. COSTS (§ 273) — COLLECTION — FEE BILL— MOTIONS TO QUASH.

A motion to quash a fee bill or levy thereunder may be filed in vacation as well as in term time, in view of Rev. St. 1909, § 2244, authorizing proceedings before the issuing judge to quash execution.

5. EXECUTION (§ 171)—ADEQUACY OF LEGAL REMEDY.

An injunction is not the proper remedy to enjoin a threatened sale of personalty under execution or other process, if there is no judgment on which to base the process; the legal remedy being adequate.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by J. W. Farris and another against Albert Smithpeter and another. From a judgment for plaintiffs, defendants appeal. Reversed.

R. S. Phillips, of Marshfield, and Watson & Page, of Springfield, for appellants. J. W. Farris, of Lebanon, for respondents.

STURGIS, J.

This is a suit to enjoin the defendant Hufft, who is sheriff of Laclede county, from enforcing against plaintiffs a fee bill issued by the clerk of the circuit court of Greene county, Mo., in a suit lately pending in such last-named court, wherein one Simpson was plaintiff and Bantley defendant. The other defendant, Smithpeter, is the person at whose instance the fee bill was issued and who is urging its collection. The grounds of plaintiffs' liability for the costs covered by the fee bill is that they became sureties on a cost bond for plaintiff in the Simpson v. Bantley Case while same was pending in the Laclede county circuit court, where it originated, and went thence to Greene county on a change of venue. The present plaintiffs succeeded in getting both a temporary and perpetual injunction in the Laclede circuit court restraining the collection of this fee bill issued out of the circuit court of Greene county. The final judgment granting the perpetual injunction was rendered after defendants' demurrer to the petition was overruled, and defendants refused to plead further. Defendants' demurrer alleged and they stood on the grounds: (a) That plaintiffs' petition states and shows that the execution (fee bill) which they seek to enjoin was issued out of another court of like jurisdiction with the one in which the injunctive remedy is sought, and that the circuit court of one county has no authority or power to enjoin the process of a like court of another county; and (b) that the petition shows that plaintiffs have an adequate remedy at law.

The court erred in overruling this demurrer. Our Supreme Court, in the early case of Pettus v. Elgin, 11 Mo. 411, ruled that an injunction cannot issue from one court to enjoin an execution issued from another. In that case an execution issued from St. Charles county to the sheriff of St. Louis county, and an action was brought in the latter county to enjoin its enforcement. The Supreme Court held that the facts showed that the execution ought to be enjoined, but said: "The circumstance that the process was in the hands of the sheriff of St. Louis county gave the circuit court of that county no control of the writ by injunction, sale, or otherwise. As to that process, the sheriff of St. Louis county was an officer of the circuit court of St. Charles county; it emanating from that court. One court cannot interfere with the process of another. The application for relief should have been made to the circuit court of St. Charles county. The decree will be reversed, and the bill dismissed." Such has been the law of this state ever since that decision, if not before, and it has been the basis of a long line of cases holding that every court has exclusive control over its own process, and that no other court has any right or power to interfere with or control the same, whether by injunction, motion to quash the writ, motion to quash the levy thereunder, or in any other manner whatever. Any relief against the process of a court must be applied for in the forum issuing it. McDonald v. Tiemann, 17 Mo. 603; Nelson v. Brown, 23 Mo. 13, 19; Keyte v. Plemmons, 28 Mo. 104; Mellier v. Bartlett, 89 Mo. 134, 137, 1 S. W. 220; Scrutchfield v. Sauter, 119 Mo. 615, 621, 24 S. W. 137; Bank v. Poole, 160 Mo. App. 133, 141, 141 S. W. 729; Norman v. Eastburn, 230 Mo. 168, 188, 130 S. W. 276. These decisions have for their basis sections 2244 and 2516, R. S. 1909, which fix the forum for all such relief and, in part, point out the proper remedies.

The reason for the rule just stated is to maintain comity between courts and prevent conflicts of jurisdiction (Bank v. Poole, 160 Mo. App. 133, 142, 141 S. W. 729), and both the rule and reason is well stated in Mellier v. Bartlett, supra, as follows: "The principles which are at the foundation of the cases before cited are that each court has the sole control of its process, and that the sheriff of the county to which the execution is sent is, as to that writ, the officer of the court from which the writ emanated. We cannot see any substantial ground for the distinction pressed upon our consideration. The circuit court of Butler county had no more power to quash the levy than it...