Joe Dan Market v. Wentz

• Decision Date: 01 February 1929
• Docket Number: No. 27147.,27147.
• Parties: JOE DAN MARKET v. LOUIS H. WENTZ et al., Appellants.
• Court: Missouri Supreme Court

13 S.W.2d 641

JOE DAN MARKET v. LOUIS H. WENTZ et al., Appellants.

No. 27147.

Supreme Court of Missouri, Division No. 1.

February 1, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Franklin Miller, Judge.

TRANSFERRED TO ST. LOUIS COURT OF APPEALS.

Anderson & Whittington for appellants.

The final decree rendered by the court below is challenged on numerous constitutional grounds in defendants' motion for new trial. The fact that a constitutional question based on the final decree rendered cannot be raised in any manner earlier than in the motion for new trial, which was the first pleading permitted by the appellant herein, is entirely beyond dispute. It is clear that this court has jurisdiction of this cause by reason of constitutional questions properly raised at the proper time.

Albert E. Hausman for respondent.

(1) This court has no jurisdiction of this appeal. St. Joseph v. Georgetown, 8 S.W. (2d) 979; Aufderheide v. Polar Wave Ice Co., 4 S.W. (2d) 776. (2) Whether the trial court erred or otherwise in overruling the motion to quash order to show cause issued against Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 88, the point was waived by answering over. Newcomb v. Railroad, 182 Mo. 687; Kepley v. Realty Co., 200 S.W. 750; Riley Penn. Oil Co. v. Symmonds, 195 Mo. App. 111; Shaffer v. Railroad, 300 Mo. 477; Ames v. Gilmore, 59 Mo. 537; F. Mitchell & Bro. v. Railton, 45 Mo. App. 273; Patrick Donohoe v. Bragg, 49 Mo. App. 273; State ex rel. Kansas City v. Trimble, 262 S.W. 357. (3) There is no constitutional question raised by the pleadings or by the evidence. If such question was raised by the motion to quash the order to show cause, that question was waived by answering over without again raising the question after the motion was overruled. Authorities under Point 2. (4) The question of jurisdiction over Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 88, is not in this case. All questions of defect or misjoinder of parties were waived when answers were filed omitting such defenses. Ames v. Gilmore, 59 Mo. 537; F. Mitchell & Bro. v. Railton, 45 Mo. App. 273.

SEDDON, C.

This is a suit in equity, wherein the plaintiff (respondent here), an incorporated entity engaged in the business of operating a retail meat market and grocery, seeks to perpetually and permanently enjoin the defendants from picketing plaintiff's store and place of business at 4113 Easton avenue in the city of St. Louis. The defendants are a local division, or unit, of a trade union, denominated Local No. 88, Amalgamated Meat Cutters and Butcher Workmen of North America, which is alleged in the petition to be a voluntary and unincorporated organization or association of meat cutters and butchers, and three named individuals, who are alleged to be officers and members of the said organization or association. The petition prays that the said defendants, together with their agents, associates, employees and confederates, be restrained and enjoined "from in any way picketing plaintiff's place of business or the premises No. 4113 Easton Avenue, St. Louis, or from picketing the adjoining or adjacent premises, or from interfering in any way with the ingress to or egress from said premises by plaintiff's customers; or from in any way harassing or intimidating plaintiff's customers or those who desire to supply plaintiff or its employees with any goods, merchandise, material or supplies; or from calling out to plaintiff's customers that plaintiff is unfair to union labor, or from following plaintiff's customers to their respective homes or places of business and warning them not to trade with plaintiff under penalty of having their places of business picketed; or from walking to and fro on the sidewalk in front of, or adjacent, or adjoining 4113 Easton Avenue, St. Louis, Missouri, carrying umbrellas with signs painted thereon, or other signs, warning or advising or requesting the public not to patronize plaintiff because it is unfair to union labor; or from passing out handbills, or from pushing or shoving handbills under the doors of houses, buildings or residences in the neighborhood of 4113 Easton Avenue, advising or requesting the public not to patronize plaintiff because it is unfair to union labor; or from in any other way or manner picketing plaintiff's place of business or interfering with its business, and that the court will grant all other and further relief to plaintiff to which it is in equity entitled."

Summons was issued for the several defendants, together with an order of the circuit court commanding that the defendants appear on a certain date and show cause, if any they have, why a temporary injunction should not be granted in accordance with the prayer of the petition. The writ of summons, accompanied by a copy of the court's order to show cause, was duly served upon the three individual defendants, and service was had upon the alleged unincorporated association, or trade union, "by delivering a copy of the writ, as furnished by the Clerk of said Circuit Court, to Louis H. Wentz of the said defendant unincorporated association, he being in said defendant's usual business office and in charge thereof." The officer's return of said writ further recited that "the president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service."

The three individual defendants filed a joint answer, which, because of its length and verbosity, we find it unnecessary to set out herein in haec verba, or to state its substance, except to say that such answer does not invoke the aid or protection of either the Federal, or the State, Constitution, or aver that any constitutional right or privilege of the individual defendants will be violated or infringed in case the relief prayed in the petition be granted to plaintiff.

The defendant unincorporated association, or trade union, appearing specially for such purpose, filed a motion to quash the order of the circuit court commanding said defendant to show cause why a temporary injunction should not issue against said defendant, upon the grounds that said defendant is not suable in any court of this State and that the said circuit court had no jurisdiction over the said defendant, or to enter any judgment or order of any nature whatsoever against said defendant; and the motion to quash furthermore raised the question of the constitutionality of an act of the General Assembly approved on March 23, 1915 (Laws 1915, p. 225), the same now being Section 1186, Revised Statutes of Missouri 1919, claiming that such act is violative of certain sections of the Constitution of this State, and also of certain sections of the Federal Constitution. The said motion to quash the order to show cause was overruled by the circuit court, but the record discloses that the motion is not set forth in the bill of exceptions herein, and no exceptions to the court's ruling and action upon such motion are shown to have been taken at the time, and thereafter preserved and saved by bill of exceptions filed as a part of the record in the cause. Some time after the overruling of said motion to quash the order to show cause, the action came on for trial upon the merits in the circuit court, whereupon the following colloquy occurred between the court and counsel for the defendant trade union:

"MR. ANDERSON: I desire the record to show at this time that a default was asked and the court indicated that the plaintiff was entitled to take a default as against the defendant union, and on the court's statement to that effect counsel for the other defendants entered the appearance of the defendant union and asked leave to file a general denial.

"THE COURT: If you have any objection to doing it, I will deny your request, and you need not file any answer, but I will proceed to give the default. You cannot put me in the hole by saying that the court has indicated that the plaintiff is entitled to default. You are under no compulsion. You are asking me to do something, and if you want it I will grant it, but do not tie it up with conditions because the court indicated it was time for default. Do you want to file an answer?

"MR. ANDERSON: Yes, if leave is granted, I will file a general denial."

Thereupon an answer, consisting only of a general denial of the allegations of the petition, was filed by the defendant, Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 88.

At the conclusion of the trial, at which evidence bearing wholly upon the merits was offered by the respective parties and received by the court, the trial court entered a decree and judgment permanently enjoining and restraining each and all of the defendants, and their agents, associates and employees, together with all the officers and members of the defendant trade union, "from picketing or walking to and fro on the sidewalk in front of or adjacent to the plaintiff's place of business or premises, 4113 Easton Avenue, St. Louis, Missouri, and the premises adjoining or adjacent thereto, in such manner as to interfere in any way with the ingress to or egress from said premises of the plaintiff by plaintiff's customers; and from in any way harrassing, intimidating, coercing or interfering with the plaintiff's customers or persons desiring to supply plaintiff or its employees with any goods, merchandise or supplies; and from calling out to plaintiff's customers entering, or about to enter, or leaving, plaintiff's said place of business, that the plaintiff is unfair to union labor; and from following the plaintiff's customers from its said place of business to their respective homes or places of business and warning them not to patronize the plaintiff under penalty of having their own places of business so picketed; and from carrying umbrellas with signs painted thereon, or other signs, or distributing hand-bills in front of the...