Finley v. Smith
| Decision Date | 06 March 1944 |
| Docket Number | 38599 |
| Parties | R. H. Finley v. Chester E. Smith, Appellant |
| Court | Missouri Supreme Court |
Reported at 352 Mo. 465 at 473.
Original Opinion of December 6, 1943, Reported at 352 Mo. 465.
On Motions to Modify, for a Rehearing and to Transfer to Banc.
Respondent Finley, has filed motions to modify, for a rehearing, and to transfer to Banc. The issues presented overlap; for instance the motion to modify presents issues (also found in the motion for rehearing) which would necessitate a rehearing if sustained, and the motion for rehearing presents issues (also found in the motion to modify) which would require only a modification of the opinion if sustained. We shall consider only the matters deemed essential.
We overrule, without discussion, the motion to modify, remarking that statements arguendo in opinions are not holdings (State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W. 2d 45, 49[3]), and that the holding involved was in movant's favor.
We have given the several issues presented in the different motions consideration. The decree was sustained insofar as it operated directly in Finley's favor and against Smith. Of this, Finley is in no position to complain. His complaints run against remanding the cause with directions to modify the decree so as not to affect any right of Smith to prosecute an action against Finley's cocovenantees. It is not to be overlooked that Finley's bill was primarily to have the covenant declared valid and incidentally for injunctive relief as to him. Underlying this position as well as the complaints now presented is Finley's contention that by virtue of the provisions of our Declaratory Judgment act (Secs. 1126-1140, R.S. 1939) he was entitled in any event to a declaration of rights under the covenant not to sue. We have in a number of cases indicated that the Declaratory Judgment act did not supplant coercive actions theretofore available. Liberty Mut. Ins. Co. v. Jones (Banc), 344 Mo. 932, 954[1], 130 S.W. 2d 945, 953[1], 125 A.L.R 1149. Section 1131, R.S. 1939, explicitly provides: "The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." Section 1126, Ibid., provides that courts "shall have power to declare rights" et cetera. These provisions do not compel action. In the instant proceeding a denial of the prayer of Finley's bill would not have terminated "the uncertainty or controversy giving rise to the proceeding." His contention that he was entitled in all events to a declaration under the covenant not to sue begs the issue, is too broad and is not in conformity with observations in adjudicated cases. State ex rel. United States Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W. 2d 25, is a recent opinion by Banc. The United States Fire Insurance Company instituted a declaratory judgment suit in Jackson county with respect to its liability under a fire insurance policy issued to Eva F. Hunt. About two weeks thereafter defendant Hunt instituted a suit on the same policy in Caldwell county and by subsequent proceedings succeeded in having the Jackson county circuit court stay the delaratory proceedings until her action in Caldwell county had been disposed of. Thereupon, the United States Fire Insurance Company, as relator, instituted the above entitled mandamus proceeding to compel respondent circuit judge to take jurisdiction of and to proceed with the declaratory judgment suit. In discussing the question of the scope of the discretion to be exercised by courts in the administration of the Declaratory Judgment act where there is another state action pending or closely in prospect, court en banc held, notwithstanding ordinarily the second action in point of filing and service of process would be subject to abatement, that Judge Terte had the discretionary power to stay the declaratory judgment suit of the insurer pending the determination of the coercive action subsequently instituted on the same policy by the...
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