Fiedler v. Bambrick Bros. Const. Co.

• Decision Date: 06 July 1915
• Docket Number: No. 17266.,17266.
• Parties: FIEDLER et al. v. BAMBRICK BROS. CONST. CO.
• Court: Missouri Supreme Court

178 S.W. 763

FIEDLER et al. v. BAMBRICK BROS. CONST. CO.

No. 17266.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Motion for Rehearing and Motion to Transfer to Court in Banc Denied July 17, 1915.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Elizabeth Fiedler and others against the Bambrick Brothers Construction Company. From an order overruling a motion to recall and quash an execution, defendant appeals. Affirmed.

See, also, 162 Mo. App. 528, 142 S. W. 1111.

Appeal from an order of the circuit court of St. Louis city overruling a motion to recall and quash an execution. Defendant seeks to quash an execution issued for fines assessed against it for violating a final decree of injunction entered in the above-entitled cause.

The grounds of its motion are as follows: "First. There is no warrant or authority in the law for the issuance of said execution. "Second. There is no judgment herein upon which to base said execution.

"Third. There is no judgment herein which authorizes or directs the issuance of said execution.

"Fourth. There is no judgment herein in favor of any party or against this defendant. "Fifth. The said execution was not issued at the request of any party to this cat se.

"Sixth. That said execution was issued at the request of E. M. Grossman, attorney for the board of education, and that as such attorney he had no right or authority to direct the isuance of said execution, and the clerk of this court should have refused to issue same upon his request.

"Seventh. That said execution, issued as aforesaid, is in violation of the fourteenth amendment to the Constitution of the United States, because, by said execution, issued in manner and form as aforesaid, defendant will be deprived of its property without due process of law.

"Eighth. That by said execution, issued in manner and form as aforesaid, the defendant is denied the equal protection of the law, in violation of the fourteenth amendment to the Constitution of the United States.

"Ninth. The issuance of said execution, in manner and form as aforesaid, is in violation of section 30, art. 2, of the Constitution of the state of Missouri, because said execution, if enforced, would deprive defendant of its property without due process of law.

"Tenth. The said execution, issued in manner and form as aforesaid, is null and void because of the violation of said fourteenth amendment of the United States and said section 30, art. 2, of the Constitution of Missouri."

To determine the validity or invalidity of the court's order in refusing to quash the execution, a synopsis of the litigation in which the fines were assessed is necessary. This synopsis we gather from the defendant's abstract of the record, and the respondents' statement, the accuracy of neither of which is denied.

The proceedings in which said fines were imposed run as follows: On May 9, 1907, Elizabeth Fiedler and 16 other plaintiffs obtained a final decree enjoining the defendant herein from operating a stone quarry on certain lots in St. Louis city in such manner as of the plaintiffs situated near said stone quarry. On September 30, 1907, the defendant was charged with violating the aforesaid injunction, and upon a finding that it had willfully disobeyed said injunction it was fined $50, for which fine an order was made that an execution issue. No appeal was taken from the judgment imposing this $50 fine. On October 27, 1007, defendant was again cited before the circuit court and charged with violating the injunction, and, upon a hearing under this citation, it was again found guilty of a second willful violation of said injunction and fined $3,000, for which it was adjudged that an execution issue. The defendant appealed from the judgment imposing this last-named fine to the Supreme Court, in which appeal certain constitutional issues, to be hereinafter mentioned, were tendered. When said appeal was lodged in this court, the defendant voluntarily abandoned the constitutional questions which it had theretofore lodged in the case, and upon its motion the cause was transferred to the St. Louis Court of Appeals, where it was tried and determined on January 9, 1912, and the judgment imposing said fine was in all things affirmed. See Fiedler v. Construction Co., 162 Mo. App. 528, 142 S. W. 1111, where a more extended history of the case will be found. On April 10, 1912, one E. M. Grossman, acting as attorney for the board of education of St. Louis city, caused an execution to be issued against defendant for both of the fines assessed against defendant, whereupon the motion to quash and recall said execution hereinbefore set out was filed by defendant. On April 22, 1912, the court heard and considered said motion to quash the execution, and overruled the same. From that order this appeal is prosecuted. In this appeal both the respondents Fiedler et al. and the board of education of St. Louis city are represented by attorneys.

T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for appellant. E. M. Grossman and Walther & Muench, all of St. Louis, for respondents.

I. Motion to Quash Execution.

BROWN, J. (after stating the facts as above).

The only issue the motion to quash properly presents for our review is whether or not the execution was issued at the request of a person who was entitled to the proceeds of the fines assessed against defendant. This point does not present a very troublesome issue, because the respondents, as well as the board of education, are represented by counsel, and we have the right to infer that respondents were also represented when the motion to quash was presented to the circuit court and overruled. The attorney for the board of education may have thought that the proceeds of these fines should be paid to the public school fund of St. Louis city under the provisions of section 8, art. 11, Constitution of Missouri; but whether that is true or not we do not decide. All parties who might be interested in the proceeds of these fines are before the court, and the trial court can determine this collateral issue when the fines are collected and make an order for their proper distribution. In re Staed, 116 Mo. 537, 22 S. W. 859. If the defendant owes the fines (and there is no evidence tending to prove that they have been paid), it is not concerned as to who may ultimately receive the proceeds thereof. When paid to the sheriff under this execution the liability of defendant will cease. State v. Bockstruck, 136 Mo. loc. cit. 360, 38 S. W. 317; State v. Newell, 140 Mo. loc. cit. 288, 41 S. W. 751.

The fact that the judgments imposing the fines...