Meierhoffer v. Hansel
| Decision Date | 08 June 1922 |
| Citation | 243 S.W. 131,294 Mo. 195 |
| Parties | CHARLES MEIERHOFFER v. HARRY HANSEL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. B. Buckner, Judge.
Reversed and remanded.
Kelly Buckholz, Kimbrell & O'Donnell, A. E. Watson and Horace H. Blanton for appellant.
(1) The court erred in rendering final judgment in this cause, making the temporary injunction granted herein perpetual, because the court did not have jurisdiction of the subject-matter, on the hearing of the motion to dissolve the temporary injunction, to render a final judgment and decree therein (a) Because the only matter submitted for hearing was defendant's motion filed during the term to dissolve the temporary injunction, which was taken up in the assignment division of the circuit court. (b) Because said cause had never been listed for trial upon its merits by either party as required by the rules of said court, particularly Rule 22. (c) Because said cause had never been assigned to Division No. 1 of the Circuit Court of Jackson County at Kansas City, by the assignment judge for trial upon its merits and a final hearing thereof, as prescribed by Rules 13, 18, 21 and 22 of said court. (d) Because the parties did not waive a compliance with said rules of said court, nor consent to the hearing of said cause as upon final hearing, and the court exceeded its jurisdiction in assigning said cause to Division No. 1 after the rendition by said court of an order and judgment overruling defendant's motion to dissolve said temporary injunction and making said temporary injunction perpetual. Rules 13, 18, 21, 22 and 29; R. S. 1919, secs. 2449 to 2457, 1964 to 1966; State ex rel. Manning v. Smith, 188 Mo. 178; Tanner v. Irwin, 1 Mo. 66; Johnson v. Board of Education, 65 Mo. 47; Cohn v. Lehmann, 93 Mo. 574; Rose v. Township Board, 163 Mo. 396; 10 Ency. Plead. & Prac. 1089; Title Guaranty Co. v. Drennon, 208 S.W. (Mo. App.) 474. (2) The court erred in refusing to dissolve the temporary injunction granted in said cause and in overruling defendant's motion therefor, and in entering a decree making said injunction perpetual; (a) Because said petition for injunction does not state facts sufficient to constitute any cause of action, nor facts sufficient to entitle plaintiff to the relief prayed for or any other relief. (b) Because there is no equity on the face of the petition and it is shown on the face of the petition that plaintiff has a complete and adequate remedy at law. (c) Because under the whole record and all of the evidence the order and decree should have been in favor of the defendant, dissolving said temporary injunction. (d) The defendant had the right in the courts of Kansas, by writ of garnishment, to impound debts owing the plaintiff. R. C. L., secs. 119, 120 and 121, pp 417-418; Hardware Mfg. Co. v. Lang & Co., 127 Mo. 246; Assurance Co. v. Walden, 238 Mo. 62; Howland v. Ry. Co., 134 Mo. 474; State ex rel. Leahy v. Barnett, 193 Mo.App. 44; Farrar v. Am. Exp. Co., 219 S.W. 994; Harris v. Balk, 198 U.S. 215, 49 Law Ed. 1023. The plaintiff is not entitled to an injunction merely because the law of Kansas in regard to juries differs from the law of Missouri. Roenfeldt v. Ry. Co., 180 Mo. 554; Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383; 14 R. C. L., sec. 120, p. 418; League v. Texas, 184 U.S. 156; Railway Co. v. Bombolis, 241 U.S. 211. The mere bringing of a suit where the parties are residents of one state, in the courts of another state, and the issuance of attachment and garnishment process therein, is not using the processes of such foreign court to harass and oppress defendant in that action, and does not entitle him to injunctive relief. Grover v. Woodward, 112 A. (N. J.) 412; Guggenheim v. Wahl, 203 N.Y. 390; Bigelow v. Copper Mining Co., 74 N.J.Eq. 457; Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383. The complaint in the petition is that the plaintiff will be deprived of or prevented from collecting a judgment debt, owing to him by the garnishee. That judgment debt was not garnishable. Tourville v. Wabash Railroad, 148 Mo. 624; Wabash Railroad Co. v. Tourville, 179 U.S. 322; Sutton v. Heinzle, 84 Kan. 758; 20 Cyc. 1010. (3) The court erred in rendering final judgment against this defendant upon the hearing of the motion to dissolve the temporary injunction and in rendering a decree perpetually enjoining the defendant: because this action of the court deprived the defendant of the rights guaranteed to him by Section 10, Article 2, Constitution of Missouri, and by Section 30, Article 2, of said Constitution, and by Section 1 of the 14th Amendment of the Constitution of the United States. State ex rel. v. Grimm, 239 Mo. 181; Mining & Milling Co. v. Fire Ins. Co., 267 Mo. 592.
Guthrie, Conrad & Durham and Hale Houts for respondent.
(1) Only questions relating to the final decree are properly before the court. No appeal lies from or review can be had with respect to the order overruling the motion to dissolve the temporary injunction. Sec. 1469, R. S. 1919; Walker v. Cooperage Co., 278 Mo. 403; State ex rel. Manning v. Smith, 188 Mo. 167. (2) The court had jurisdiction to enter the final decree. (a) The hearing was upon the merits as well as upon the motion. Joplin Gas. Co. v. City of Joplin, 182 Mo.App. 422. (b) The objections in respect to the division of the court are not well taken. Secs. 2550, 2552, 2554, R. S. 1919; Dorton v. K. C. Rys., 204 Mo.App. 270; Foxmiller Grain Co. v. Stephens, 217 S.W. 996. (c) Appellant was not prejudiced in respect to the assignment of the case to Division No. 1, in respect to the manner or time of assignment, and was not prejudiced by a hearing upon the merits and the entering of a final decree. There is, therefore, no occasion to disturb the judgment below. Sec. 1513, R. S. 1919; Interstate Ry. Co. v. Railroad, 251 Mo. 720; Moritz v. Moran, 263 Mo. 252; Arensmeyer v. Ins. Co., 254 Mo. 380; Railroad v. Blechle, 234 Mo. 485; Baesel v. Wells Fargo & Co., 260 Mo. 474. (3) Under the pleadings and the evidence the order and judgment were proper and should be affirmed. (a) The claim sued upon in Kansas was itself a fraud upon the plaintiff. It grew out of the joint adventure and even partnership of plaintiff and Kennedy; and the liability, if any, was as much the liability of Kennedy as of plaintiff. The maintenance of the claim for the benefit of Kennedy, assigned for his benefit without consideration, constituted a fraud upon the plaintiff. 15 R. C. L. 500-508; Berry v. Stigall, 253 Mo. 696; Filbrun v. Ivers, 92 Mo. 338; Seehorn v. Hall, 130 Mo. 257; South Joplin Land Co. v. Case, 104 Mo. 572; Siela v. Kneib, 176 S.W. 1052. (b) The attempt to prevent plaintiff from collecting the Missouri judgment against Kennedy by garnishment in the Kansas action was unlawful and coercive. Wabash Railroad v. Turville, 148 Mo. 614; Wabash Railroad v. Turville, 179 U.S. 322; Sutton v. Heinzle, 84 Kan. 756. (c) The Kansas action and proceeding thereunder were brought and maintained fraudulently for the purpose of vexing, harassing and oppressing plaintiff, depriving him of his rights in Missouri, subjecting him to unjust vexation and injury for which there was no adequate remedy at law or in the Kansas courts. Plaintiff is therefore entitled to injunctive relief in the courts of Missouri. 6 Pomeroy's Eq. Juris. (1905 Ed.) sec. 670; 14 R. C. L. 409, 416, 424; Cole v. Cunningham, 133 U.S. 107; Barrington v. Ryan, 88 Mo.App. 85; Kelly v. Siefert, 71 Mo.App. 143; Miller v. Cuttings, 85 Md. 610; Keiser v. Rice, 47 Md. 303; Claflin v. Hamlin, 42 How. Pr. 284; O'Haire v. Burns, 191 P. 755, 45 Colo. 432; Mason v. Harlow, 84 Kan. 277; Reed v. Hollingsworth, 135 N.W. 37. (4) The judgment infringes no constitutional question. Cole v. Cunningham, 133 U.S. 107.
REEVES, C. Railey and White, CC., concur.
Injunction. From a decree overruling a motion to dissolve a temporary injunction and making the same perpetual, defendant has prosecuted his appeal.
Respondent instituted his action in equity in the Circuit Court of Jackson County at Kansas City, Missouri, on October 4, 1920, to restrain and enjoin appellant, his agents and attorneys, from prosecuting a certain suit instituted by him against respondent in the District Court of Wyandotte County, Kansas, and from all ancillary and auxiliary proceedings in the way of attachments and garnishments, engrafted thereon.
Upon application therefor the judge of the Assignment Division of said Circuit Court of Jackson County issued a temporary injunction in said cause, whereupon appellant filed his answer and motion to dissolve. In due course respondent, under existing rules of that court, served notice upon defendant that said motion to dissolve would be called up for hearing in said Assignment Division. The motion to dissolve was a challenge to the sufficiency of the petition and in its nature a demurrer, and furthermore contained a complaint against the sufficiency of the bond given by respondent. Upon a hearing of said motion, considerable testimony was offered on the issues joined in the pleadings, following the usual procedure of offering in evidence ex parte affidavits.
At the conclusion of the hearing the assignment judge overruled said motion and entered a decree perpetually enjoining appellant from prosecuting his action in any manner in Wyandotte County, Kansas. Appellant thereupon challenged the jurisdiction of the assignment judge to enter a final decree in said cause and offered in support thereof, without objection, certain of the rules of said circuit court. The assignment judge, being also judge of Division No 1 of said court, thereupon directed the clerk of the assignment division to "put in the record this, the cause was...
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