Hargadine-McKittrick Dry Goods Co. v. Garesche

• Decision Date: 01 February 1921
• Docket Number: No. 22230.,22230.
• Parties: HARGADINE-McKITTRICK DRY GOODS CO. v. GARESCHE et al., Judges.
• Court: Missouri Supreme Court

227 S.W. 824

HARGADINE-McKITTRICK DRY GOODS CO. v. GARESCHE et al., Judges.

No. 22230.

Supreme Court of Missouri, in Banc.

February 1, 1921.

Original proceeding in mandamus by the Hargadine-McKittrick Dry Goods Company against Vital W. Garesche and George H. Shields, Judges. Peremptory writ ordered as to Judge Garesche and denied as to Judge Shields.

Nagel & Kirby, of St. Louis, for petitioner. E. C. Slevin, of St. Louis, for interveners.

WALKER, C. J. Mandamus.

This is an original proceeding by mandamus directed against two of the judges of the circuit court of the city of St. Louis.

A suit had been brought in said court by one Zeitinger and a number of others against the Hargadine-McKittrick Dry Goods Company, a wholesale mercantile corporation, to secure the appointment of a receiver for said company. The latter had been engaged in business in the city of St. Louis, but was in liquidation at the time of the institution of the action for the receiver. A hearing resulted in the appointment of the receiver, and the company appealed to the Supreme Court, as authorized by section 2038, R. S. 1909, now section 1469, R. S. 1919. Thereafter, while the case was pending therein, stipulations were filed in the Supreme Court by which all of the parties agreed that the judgment of the circuit court appointing the receiver should be reversed and the cause remanded, with directions to the circuit court as to the complete and final disposition of the matter at issue. Thereupon the Supreme Court, in conformity with said stipulations made and entered of record a final judgment, reversing the ruling of the circuit court appointing a receiver, and remanded the cause to the latter court, with directions that it proceed as provided in said, judgment. The mandate sent down by the Supreme Court to the circuit court was in literal compliance with the Supreme Court's judgment, and provided as follows:

"That the circuit court tax against the appellant all costs, including reasonable compensation to the receiver for his administration of the estate of the said appellant, together with all reasonable attorney's fees and other costs or expenses which the said receiver has incurred in the administration of the estate, and also the compensation due respondents' attorneys for their services, with disbursements, and the compensation due the referee and the attorneys for the appellant for their services, with disbursements, and to order all costs paid as and when allowed, out of the corpus of the estate now in the hands of the receiver, and to make such further orders and entries as may be necessary to dispose of the litigation and the estate in the said circuit court, in accordance with said stipulations of the parties filed in this court, and those heretofore executed and to be filed in said circuit court, and thereupon to dismiss the respondents' petition herein, in accordance with the said stipulations."

The grounds for the nonaction of the judges of the circuit court of which complaint is here made may be better understood perhaps by a statement of the facts in the Zeitinger case, or receivership proceeding, which facts constitute the material averments of relator's petition herein. That cause, when the evidence was taken and the issues submitted, was pending in division No. 13 of the circuit court. That division was at the time presided over by Judge Shields, one of the 14 judges of said court. Prior, however, to the refusal of the circuit court to revoke the order appointing the receiver from which the appeal was taken, Judge Shields had, on the first Monday in July, 1916, been transferred to another division of the circuit court by an order of the judges of same sitting in general term, as authorized by section 4153, R. S. 1909, as amended, now section 2620, R. S. 1919. Subsequent to this transfer, and after Judge Shields Bad complied therewith, he exercised his judicial functions in division No. 13 of said court, by sitting therein and rendering and entering the order in the receivership proceeding. On February 5, 1919, when the mandate of the Supreme Court was filed in division No. 13 of the circuit court, it was presided over by Judge Kimmel, one of the other judges of said circuit court, who had been transferred to said division by the judges sitting in general term, as provided in the statute above cited. Two days after the mandate of the Supreme Court had been filed in said division, to wit, on February 7, 1919, all of the parties to the receivership proceeding appeared in person or by attorney before Judge Kimmel, and the matter of the further jurisdiction over said cause pursuant to said mandate coming up for consideration, said parties, by their attorneys, joined in a request that Judge Kimmel, as the judge then presiding in division No. 13, make a formal request that Judge Garesche, one of the other judges of said circuit court, take charge of the further proceedings in said cause. Thereupon Judge Kimmel, on said day, in compliance with the agreement and application of the parties, made and caused to be entered of record in said division No. 13 a written request and memorandum as follows:

"Judge Kimmel requests Judge Garesche to hear and determine the application for allowances and disbursements filed herein by plaintiff's attorneys, and Judge Garesche consents. "Judge Kimmel requests Judge Garesche to hear and determine all applications for allowances and disbursements that may hereafter be filed herein, and to make a separate order disposing of each of such applications on its own merit, and Judge Garesche consents.

"Judge Kimmel requests Judge Garesche to sit in his place and stead for the purpose of settling the accounts of the receiver, and of allowing and taxing against defendant Hargadine-McKittrick Dry Goods Company the costs herein, including reasonable compensation to the receiver for administering the estate of said defendant, together with all reasonable attorney's fees, and other costs and expenses which the said receiver has incurred in the administration of the estate, and for the further purpose of ordering such costs and all other allowances to be paid out of the corpus of the estate now in the hands of the receiver, and for the purpose of making such further orders and entries as may be necessary to dispose of litigation and estate in this court in accordance with the mandate of the Supreme Court of Missouri filed herein, and Judge Garesche consents."

Pursuant to said request, Judge Garesche consented, as the record attests, to comply with same, and thereupon assumed jurisdiction in the cause, and from time to time heard applications and motions, made orders, and conducted other proceedings therein in compliance with the judgment and mandate of the Supreme Court. Under the orders thus" made by Judge Garesche, many of the directions of the mandate have been complied with. These include the allowance of fees and disbursements necessary to the settlement of the proceeding, their taxation as costs and payment out of the corpus of the estate, the dismissal of all pending suits except the receivership proceeding, the discharge of the receiver, his payment, and that of his counsel; the appointment of trustees provided for by the stipulations to temporarily hold the assets of the company; and, in fact, all of the precedent conditions prescribed as necessary to be performed under the stipulations and mandate to authorize the company to resume control of the estate have been complied with, except the submission of formal proof of the authority of the attorneys who signed the stipulation of settlement for plaintiffs and interveners, this proof being a prerequisite to the surrender by the trustees of the assets of the estate to the company. It is to supply this requisite to a final disposition of the principal proceeding that the writ is sought.

Subsequent to the making of the orders by Judge Garesche above referred to, on June 30, 1919, Judge Kimmel was by the general term transferred from division No. 13 to another division of said court, and Judge Shields was retransferred to said division No. 13. On July 10, 1919, Judge Garesche sustained a motion for the allowance of fees to designated counsel of the company. A motion was thereupon filed by counsel for certain persons, constituting 7 of the plaintiffs in the receivership proceeding, assailing the right of Judge Garesche to exercise jurisdiction in the case, which motion was as follows:

"First. The order of Judge Kimmel of February 7, 1919, divesting himself of jurisdiction of the cause and vesting it in Judge Garesche, a judge of another division of the court, was unconstitutional and void.

"Second. If it be held that Judge Garesche obtained jurisdiction by virtue of the order of Judge Kimmel, it continued only so long as Judge Kimmel occupied the bench in division 13, and was lost when, by order of general term, Judge Shields was assigned to that division, unless Judge Shields, by another entry of record, requests Judge Garesche to resume jurisdiction and the latter consents thereto."

This motion was by Judge Garesche, in a carefully prepared memorandum, overruled. On January 26, 1920, counsel for relator filed in division No. 13 of the circuit court a `motion praying for an order of the court for the further and final carrying into effect of the matters directed to be done in the Supreme Court's judgment, but not theretofore included in the orders made in regard thereto by Judge Garesche, but necessary to a complete compliance with the mandate of the Supreme Court.

Application was then made by counsel for relator to Judge Shields, who, as stated, had been reassigned to and was sitting in division No. 13, to supplement the action of Judge Kimmel in requesting Judge Garesche to continue to exercise jurisdiction in the winding up of the receivership proceedings in conformity with the mandate of the Supreme Court. Judge Shields overruled the...