Koehler v. Snider
| Decision Date | 17 November 1903 |
| Citation | 76 S.W. 1032,177 Mo. 546 |
| Parties | KOEHLER v. SNIDER, Judge et al |
| Court | Missouri Supreme Court |
Rule made absolute.
W. H Miller, Wilson Cramer and Sam H. West for relator.
(1) The petition of the bridge company for injunction against the Terminal Railroad Company et al. had been filed in the office of the clerk of the circuit court of Cape Girardeau county as provided by law, before its presentation to relator as judge of the probate court. (2) All of the defendants resided in Cape Girardeau county and the circuit court of that county had jurisdiction, notwithstanding the fact that the land sought to be condemned by the bridge company was situated in Scott county. Injunction operates in personam. High on Inj. p. 2, sec. 1. (3) In the vacation of the circuit court and the absence of the judge from the county, relator, as judge of the probate court, was authorized by law to grant temporary writs of injunction, returnable to the circuit court, and in this instance was acting strictly within the scope of his authority. R. S. 1899, secs. 3627, 3628, 3629. (4) The Cape Girardeau Court of Common Pleas under the act of its creation had jurisdiction in Cape Girardeau township only (Laws 1851, p. 201). Subsequently, by the Act of 1853, its jurisdiction was enlarged and extended over the county (Laws 1853, p. 80), but this amendatory act shows that its jurisdiction is limited. R. S. 1899, p. 2579, secs. 1 and 2. (5) A writ of prohibition does not lie from the Cape Girardeau Court of Common Pleas, nor the judge thereof, to the probate court, nor the judge thereof. (a) Because the writ can issue only from a superior to an inferior court. High on Extr. Leg. Rem., sec. 762. (b) The Cape Girardeau Court of Common Pleas is an inferior court; it has neither appellate jurisdiction from the probate court, nor a superintending control over it. This jurisdiction is vested in the circuit court. R. S. 1899, sec. 1674. (c) The circuit court is also given a superintending control over the common pleas court and appellate jurisdiction from its judgments by appeal or writ of error. R. S. 1899, p. 2583, sec. 26; Laws 1853, p. 82. (d) While it is true that by the amendatory Act of 1853 the jurisdiction of the Cape Girardeau Court of Common Pleas was enlarged and made co-extensive with the county, it is specially defined by that act and its superintending and appellate jurisdiction is confined to justices of the peace. R. S. 1899, p. 2579, sec. 2; Laws 1853, p. 80; R. S. 1899, p. 2584, sec. 38; Laws 1864, p. 303. (e) It is significant and in point that the same section of the statute which enlarges the jurisdiction of the common pleas court and gives it "concurrent original jurisdiction in all civil actions at law with the circuit court of said county," limits its superintending control to justices of the peace. R. S. 1899, p. 2579, sec. 2. (f) Section 4449, Revised Statutes 1899, which provides that "the Supreme Court, and each division thereof, the two Courts of Appeals, and the circuit and common pleas courts within their several jurisdictions, and also the judges thereof to the extent hereinafter provided in this article shall have power to hear and determine proceedings in prohibition," confers no authority upon the court of common pleas, or the judge thereof, to control by prohibition the probate court or its judge. The words "within their several jurisdictions" do not mean jurisdiction territorially, but jurisdiction of subject-matter, which, in the case of the court of common pleas, is the concurrent superintending control of justices of the peace and appellate jurisdiction in cases tried before them.
Giboney Houck, John A. Hope and M. R. Smith for respondent Snider, Judge.
(1) The petition of the Southern Illinois and Missouri Bridge Company for injunction, set out in relator's petition for prohibition, presented to Judge Koehler, judge of the probate court of Cape Girardeau county, fails to show that said petitioner had any power to condemn property in Illinois, and so failing to make that showing, it had no such power in the State of Missouri, and hence the probate court should not have entertained its petition in that behalf, and in doing so, exercised an unwarranted power, that subjected it to the superintending control of the court of common pleas, or the judge thereof. Meyers v. McCabe, 73 Mo. 236; 2 Patt. (Comp.) Digest, p. 1091, par. 289. Courts will not take judicial notice of the legislative acts of other States. Authorities, supra. Whether or not the use is a public one is judicial, without regard to any legislative assertion on the subject. City v. Hancock, 91 Mo. 54; 1 Lewis on Eminent Domain, p. 408, sec. 158. (2) The court of common pleas within the county of Cape Girardeau, has the same powers and jurisdictions of the circuit court, and the circuit court is a court of general common-law jurisdiction. Hope v. Blair, 105 Mo. 85; Railroad v. St. Louis, 92 Mo. 160. (3) The Cape Girardeau Court of Common Pleas has the same power and jurisdiction within the county of Cape Girardeau with respect to the issuance of writs of prohibition that the circuit court would have. R. S. 1899, p. 2579, sec. 2; Roth v. Tiedman, 53 Mo. 491. "Circuit courts" include "common pleas courts." R. S. 1899, sec. 4161. The Legislature in 1895 enacted a special statute controlling the issuance or procedure relating to writs of prohibition. Sec. 4449, R. S. 1899. (4) Relator, Koehler, as judge of the probate court, was not authorized in the exercise of probate jurisdiction to issue a temporary injunction, but that authority was conferred on him and all other probate judges by the statute regulating the issuing of injunctions by circuit and common pleas courts. R. S. 1899, sec. 3628. (5) It does not follow that before a court can superintend the actions of another court, it must have appellate jurisdiction. Appeal had its origin in the civil law. In civil actions it was unknown at common law. State ex rel. v. Woodson, 128 Mo. 514; 1 Am. and Eng. Ency. Law, p. 616. (6) If only appellate courts could issue writs of prohibition, then the writ could not have existed at common law; for, strictly speaking, there were no appellate courts at common law. 8 Bacon's Abridg., title "Prohibition," p. 208. (7) The Supreme Court issues this extraordinary writ against judges of the Courts of Appeals, probate judges and county court judges, to prevent them from in some way abusing their several jurisdictions touching causes pending in their courts. State ex rel. v. Clark County Court, 41 Mo. 47; State ex rel. v. Murphy, 132 Mo. 382. These and other cases in Missouri show that appellate jurisdiction is not necessary to the exercise of a superintending control over an inferior court.
OPINION
On the 12th day of May, 1902, after filing its petition in the office of the clerk of the circuit court of Cape Girardeau county, the Southern Illinois and Missouri Bridge Company, a corporation created under the laws of the State of Illinois for the purpose of constructing and maintaining a bridge across the Mississippi river under the provisions of an act of Congress authorizing the construction thereof from a point in Alexander county, Illinois, to a point in Scott county, Missouri, and duly licensed to do business in the State of Missouri, made application to relator, Joseph Koehler, judge of the probate court of Cape Girardeau county, Missouri, in vacation, for a temporary injunction against the Cape Girardeau & Thebes Bridge Terminal Railroad Company, John H. Crowder, Louis B. Houck and Giboney Houck, to restrain and enjoin them from building or attempting to build a railroad or other structure upon a certain strip of ground necessary as an approach to said bridge, and for the condemnation of which for that purpose proceedings had previously been begun and were then pending in the circuit court of Scott county.
All of the directors of the Cape Girardeau & Thebes Bridge Terminal Railroad Company, including the president, John H. Crowder and his co-defendants, Louis B. Houck and Giboney Houck, resided at the city of Cape Girardeau in Cape Girardeau county.
While the petition for injunction was being read to the relator, he was served with a writ of prohibition issued at the suggestion and relation of the defendants in the injunction, by the Hon. John A. Snider, judge of the Cape Girardeau Court of Common Pleas, in vacation, commanding him immediately to stop all proceedings before him and to refrain from issuing any injunction in said cause, until the further order of the Cape Girardeau Court of Common Pleas.
This writ was made returnable to the May term, 1902, of said court.
Upon the service of this writ of prohibition, the point was raised and suggested to relator by counsel presenting the application for injunction, that the Cape Girardeau Court of Common Pleas had neither appellate jurisdiction from the probate court, nor a superintending control over the same, and that therefore the said writ of prohibition issued by Judge Snider was in excess of his authority, and was null and void. After hearing argument pro and con relator proceeded with the hearing of the application for injunction, and granted a temporary writ returnable to the circuit court of Cape Girardeau county.
At the following May term of the court of common pleas a citation was issued to relator to show cause at the succeeding September term why he should not be proceeded against for contempt, and to prevent the further alleged unlawful assumption and exercise of authority by said court of common pleas and its proceeding against him for contempt, relator presented to this court its petition in due form, praying the...
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