Klingelhoefer v. Smith

• Decision Date: 26 January 1903
• Parties: KLINGELHOEFER et al. v. SMITH et al., Judges
• Court: Missouri Supreme Court

71 S.W. 1008

171 Mo. 455

KLINGELHOEFER et al. v. SMITH et al., Judges

Supreme Court of Missouri

January 26, 1903

Writ denied.

John F Imel and Vinton Pike for petitioners.

(1) A resort to a court of equity to set aside or annul a title at law is a direct attack upon that title, and the judgment will affect the title. Edwards v. Railroad, 148 Mo. 516. A proceeding in equity which brings the holder of the legal title before the court for the purpose of charging his land with a demand to which he is a stranger, directly affects and involves the title. The title is an absolute protection to the owner of it unless in equity it should be set aside or qualified. Petitioners claim an absolute title, and Rieschick can not succeed without impeaching it. Brown v Turner, 113 Mo. 27; Morris v. Clare, 132 Mo 238; Bryant v. Russell, 127 Mo. 422. A suit by Margaret to set aside the decree suffered by herself and guardian would be one involving title to real estate. Truesdale v. McCormick, 126 Mo. 39. It is proposed to take the lot to which petitioners have the title, or to take part of it, to pay Margaret's debt to Rieschick. That involves the title as does the taking a part of one's land for public use. Baubie v. Ossman, 142 Mo. 499. (2) If the Court of Appeals had not jurisdiction of the appeal, it could do nothing in the case but transfer the record to this court as provided by section 1657. Its attempt to affirm the judgment is utterly void, and the same as though no action had been taken. The record in contemplation of law still remains in that court to be transferred to this court in obedience to the writ prayed by petitioners. State ex rel. v. St. Louis Court of Appeals, 97 Mo 276; Ensign Mfg. Co. v. McGinnis, 30 W.Va. 532; Jackson v. Maxwell, 5 Rand. (Va.) 636; French v. Noel, 22 Gratt. 454; Hein v. Smith, 13 W.Va. 358; Darby v. Cozens, 1 Term R. 552; 2 Spelling, Ex. Rel., sec. 1734.

Culver & Phillip for respondents.

(1) Title to real property was not involved in Rieschick v. Klingelhoefer et al. so as to confer jurisdiction of the appeal upon this court. Price v. Blankenship, 144 Mo. 209; Heman v. Wade, 141 Mo. 598; Bradley v. Ins. Co., 147 Mo. 634. If the doctrine laid down in these cases is applied to the case at bar it is clear that the title to real property is not involved in the controversy between Rieschick and Mrs. Ziemendorf's daughters. The decree entered by the trial court and affirmed by the Court of Appeals did not affect the title to the property in the least. Before the suit of Rieschick v. Klingelhoefer et al. was brought, the title to the property was in the defendants, the daughters of Mrs. Ziemendorf, and after the decree was rendered the title remained in them. The decree did not divest the title out of them or declare that they were not the owners of the property or vest it in Mrs. Ziemendorf. It simply established Rieschick's judgment as a lien upon the property and ordered it sold to satisfy that lien. The theory upon which this decree was asked by Rieschick, the theory on which it was entered by the trial court and the theory on which the decree was affirmed by the Kansas City Court of Appeals was: Conceding the fact to be that the defendants in that case, Mrs. Ziemendorf's daughters, were really the owners of the property, still they were estopped to claim the ownership of that property because they had permitted the debtor, Mrs. Ziemendorf, to take the apparent title in her name, hold herself out to the world and to Rieschick as the owner, and to obtain the credit from Rieschick upon the faith of her apparent ownership. Upon this theory of the case the title to real property was not and could not be involved. There could be no dispute between Rieschick and the defendants as to the ownership of the property or the title thereto. The defendants in that case were conceded to be the owners of the property. The plaintiff claimed the right to subject it to the payment of his judgment against Mrs. Ziemendorf not because she had any title to the property, but because, as against him, the defendants were estopped to claim ownership of it since they had induced the plaintiff by their actions to extend credit to Mrs. Ziemendorf upon the faith of her apparent ownership. (2) It is no ground for issuing a writ of prohibition that the trial court or the Court of Appeals may have erred in adjudging that Rieschick's judgment was a lien upon the property upon the theory hereinabove stated. A writ of prohibition is never allowed to usurp the functions of a writ of error or certiorari, and can never be employed as a process for the correction of errors of inferior tribunals. State ex rel. v. Burckhartt, 87 Mo. 533; Coleman v. Dalton, 71 Mo.App. 25; 19 Am. and Eng. Ency. Law (1 Ed.), 265. Evidently the attempt in this case is to so employ it. Upon the facts the writ of prohibition should be denied for two reasons: (a) A litigant can not appeal to one court, submit his case with the question of jurisdiction "concealed in his sleeve," obtain the judgment of the court, and then, if it be adverse to him, attack its jurisdiction for the first time by resort to prohibition. "The writ of prohibition does not issue ex debito justitiae but only in the discretion of the court. When the applicant has made out his prima facie case, bringing it within the technical requirements of the law, the question still remains for the court, does the real right and justice of the case call for this extraordinary remedy? In determining this question, if there is anything in the circumstances suggesting that the party has neglected to apply for relief that was reasonably available, the writ would be withheld, at least until such relief was sought." State ex rel. v. Aloe, 152 Mo. 484. (b) If upon an appeal there are two assignments of error, one of which the Court of Appeals has the jurisdiction to determine and the other one of which the Supreme Court has the exclusive jurisdiction to decide, and the appellant voluntarily takes his appeal to the Court of Appeals instead of to the Supreme Court and submits his case to the jurisdiction and decision of that court, solely upon the assignment of error which, but for the other assignment of error, it has power to determine, and that court decides against him, can he then, for the first time, question the jurisdiction of the court and ask to have the case transferred? This very question was presented to this court in Landis v. McDonald, 86 Mo.App. 335. (3) It is admitted that long before the petition for the writ of prohibition was filed in this case the Kansas City Court of Appeals had finally heard and determined the case of Rieschick v. Klingelhoefer and ceased to entertain or have any jurisdiction or control of said cause. Before this petition was filed the mandate had been sent to the Buchanan Circuit Court and the Court of Appeals had adjourned its term. And the judges of that court "were not, at the time the petition herein was filed, entertaining nor have they since said time entertained jurisdiction of said cause of Rieschick v. Klingelhoefer et al., nor were they, at said times, proceeding therein nor are they about to proceed or to assume, nor do they claim to have any further jurisdiction in said case." Upon this state of facts prohibition should not go. "Where the proceedings which it is sought to prohibit have already been disposed of by the court, and nothing remains to be done either by the court or by the parties, the cause having been absolutely dismissed by the inferior tribunal, prohibition will not lie." High Ex. Leg. Rem., secs. 766, 774; Lloyd on Prohib., 12; Darby v. Cozens, 1 Term R. 552.

OPINION

In Banc

Prohibition.

VALLIANT J.

This is an application for a writ of prohibition to be directed against the judges of the Kansas City Court of Appeals on the alleged ground that they have assumed appellate jurisdiction of a case in which title to real estate is involved.

For the purposes of this application the following is a sufficient statement of the facts:

The petitioners, Elizabeth Klingelhoefer et al., in December 1897, brought a suit in equity against Margaret Ziemendorf, their mother, alleging that she had...