Rogers & Baldwin Hardware Co. v. Cleveland Building Co.

• Decision Date: 05 February 1896
• Citation: 34 S.W. 57,132 Mo. 442
• Parties: Rogers & Baldwin Hardware Company, Appellant, v. Cleveland Building Company et al
• Court: Missouri Supreme Court

34 S.W. 57

132 Mo. 442

Rogers & Baldwin Hardware Company, Appellant, v. Cleveland Building Company et al

Supreme Court of Missouri

February 5, 1896

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Affirmed.

Massey & Tatlow for appellants.

(1) This was a proceeding quasi in rem, within the meaning of the rule, that after such proceeding had been commenced in the state court no proceedings could be commenced in the United States court which would oust its jurisdiction and prevent the state court from proceeding to judgment and sale of the premises. Boswell v. Otis, 9 How. 336; Cooper v Reynolds, 10 Wall. 308; Gordon v. Terry, 15 N.J.Eq. 112; Heidritter v. Oilcloth Co., 112 U.S 294; Cole v. Oil Well Supply Co., 57 F. 534. (2) It is expressly decided by the supreme court of the United States, in a long line of authorities, that substituted process, in actions quasi in rem, can only be sustained when in the first instance some act is done which gives the court dominion over the property. That is, by actual possession, or a recorded levy that gives constructive notice to the world of such dominion. Pennoyer v. Neff, 95 U.S. 714; Freeman v. Anderson, 119 U.S. 187; Cooper v Reynolds, 10 Wall. 308; The Rio Grande, 23 Wall. 458; Cole v. Cunningham, 133 U.S. 116; Arndt v. Griggs, 134 U.S. 557. (3) Undoubtedly, circuit courts and state courts, in certain controversies between citizens of different states, are courts of concurrent and coordinate jurisdiction, and the general rule is, as between courts of concurrent and coordinate jurisdiction, that the court that first obtains jurisdiction of the controversy, or of the property in dispute, must be allowed to dispose of it without interference or interruption from a coordinate court. Riggs v. Johnson Co., 6 Wall. 196; Central Trust Co. v. Railroad, 57 F. 9; Warrows v. Terry, 36 F. 337; Wickam v. Howe, 60 F. 330; Mack v. Winslow, 59 F. 316; Metz v. Graham, 57 Mo. 410; Patterson v. Stephenson, 77 Mo. 332. (4) Process subsequent to judgment is as essential to jurisdiction, as process antecedent to judgment, or the judicial power would be incomplete and entirely inadequate to the purposes for which it was created. Hence, if a court once acquires jurisdiction in rem or quasi in rem, it has jurisdiction to proceed, not only to judgment, but to sale under final process, and give the party litigants entitled thereto the proper and appropriate fruits of such litigation. Riggs v. Johnson Co., 6 Wall. 187; Gates v. Bucki, 53 F. 961. (5) The supreme court of the state of Missouri has held that in an action to enforce a mechanic's lien, jurisdiction having once attached will not be divested by proceedings in bankruptcy instituted subsequent thereto, and that execution can be sued out in such action so commenced in the state court, and the property sold without first procuring leave from the federal court, and that such a sale will pass a valid title. Seibel v. Simeon, 62 Mo. 255; Fisher v. Lewis, 69 Mo. 629.

Beardsley, Gregory & Flannelly and White & McCammon for respondents.

(1) The defendants filing this motion pursued the proper remedy. All courts in this state have universally held that a trial court has complete control over its own process and can set aside an execution sale on motion at or before the return term of the writ. Holzhour v. Meer, 59 Mo. 434; American Wine Co. v. Scholer, 85 Mo. 496; St. Louis v. Brooke, 107 Mo. 380; McKee v. Logan, 82 Mo. 524; James & Ray, Ex parte, 59 Mo. 280. And this is true, even where the purchaser at an execution sale is present and resists the motion. (2) Where gross inadequacy of price is coupled with accidents, mistakes, or misapprehension caused by a purchaser or others interested in a sale, or by the officer's conduct, the court will set aside the sale. Cole Co. v. Madden, 91 Mo. 615; Walters v. Hermann, 99 Mo. 529; Railroad v. Brown, 43 Mo. 294; Bouldin v. Ewart, 63 Mo. 330; Knoop v. Kelsey, 121 Mo. 648; Conn v. Day, 106 Mo. 300; McKee v. Logan, 82 Mo. 528. These authorities show that the court was thoroughly justified under the evidence in setting aside sale and deed. (3) In matters of this kind the presumptions are all in favor of the correctness of the finding of the court below, who had the witnesses before him and was better able to determine all the facts. This is especially true in cases like the present, where there was conflict of evidence upon material points, and one of the chief questions to be determined was the good faith of parties before the court. Waddell v. Williams, 50 Mo. 216; Reid v. Griffith, 63 Mo. 545; Eidemiller v. Kumpf, 61 Mo. 344. (4) It having been established by proof that the property was at the time of the levy and sale under the execution in the possession of the federal court through its receiver, the burden devolved upon defendants in the motion to show, even upon their own theory of the case, that the levy and sale were under and by virtue of proceedings in which a court of coordinate jurisdiction with the federal court had first assumed jurisdiction of the property itself. This necessitates the proof of a valid judgment upon which to rest the levy and sale. Since the proceedings were before a justice of the peace in a statutory proceeding to enforce a mechanic's lien, no presumptions will be indulged in favor of his jurisdiction, but the same must be established by proof. It must appear upon the face of his record. Ewing v. Donnelly, 20 Mo.App. 6; Corrigan v. Morris, 43 Mo.App. 456; State v. Metzger, 26 Mo. 65; McClune v. Beattie, 46 Mo. 391; Rohland v. Railroad, 89 Mo. 180; Sanderson v. Fleming, 37 Mo.App. 595; McKelvey v. Wonderley, 26 Mo.App. 631; Hill v. Ore & Steel Co., 90 Mo. 103; Brandenburger v. Easley, 78 Mo. 659; Lecoutour v. Peters, 57 Mo.App. 449; Bailey v. Cook, 8 Mo.App. 565. (5) The evidence failed to show the justice of the peace had jurisdiction, because there was no showing of a proper service on the parties to the contract under which work was done. Wibbing v. Powers, 25 Mo. 599; Westcott v. Bridwell, 40 Mo. 146; Steinmann v. Strimple, 29 Mo.App. 482; Lumber Co. v. Schuler, 49 Mo.App. 90. (6) The levy upon and sale of the property while in the possession of the federal court made such levy and sale void. Wiswall v. Sampson, 14 How. 52; Ellis v. Co., 23 S.W. 858; Walling v. Miller, 108 N.Y. 173; Harness v. Waterbury, 27 S.W. 110; Robinson v. Railroad, 66 Pa. St. 160; Brady v. Johnson, 26 A. 9; Walker v. Flink, 2 McCrary, 341. (7) The jurisdiction of the justice of the peace in the suit brought before him for the enforcement of a mechanic's lien in nowise prevented the federal court from entertaining jurisdiction of a suit for the foreclosure of a mortgage upon the premises and from the appointment of a receiver in that case to take possession of the property. Wilmer v. Railroad, 2 Woods, 409; Moran v. Sturges, 154 U.S. 256; Heidritter v. Oil Cloth Co., 112 U.S. 294; Buck v. Colbath, 3 Wall. 343.

Burgess, J. Brace, C. J., Sherwood, Macfarlane, and Robinson, JJ., concur. Gantt, J., concurs in second and last paragraphs but expresses no opinion as to the first. Barclay, J., dissents from last, but concurs in first, paragraph.

OPINION

In Banc.

Burgess J.

This case was transferred to the court in banc, after an opinion reversing the judgment had been rendered. 32 S.W. 1. We adopt the statement of facts therein made, as well, also, as the first paragraph of the opinion of our learned brother, Barclay, J. They are as follows:

"The questions to be determined on this appeal arose upon a motion in the circuit court to set aside a sheriff's sale, which motion the court sustained. The plaintiffs appealed, after having taken proper steps to give the trial court opportunity to review its ruling, and saving the evidence and all exceptions, in the usual way. The original cause in which the motion appears is entitled: 'W. C. Rogers and A. A. Baldwin, composing the firm of Rogers and Baldwin Hardware Co., plaintiffs, v. The Cleveland Building Co., A. B. Crawford, John D. Porter, Seth Tuttle, Marion Davis, W. H. Keyser, owners, and Jarvis-Conklin Mortgage Trust Co., mortgagees, and Samuel M. Jarvis, trustee, W. W. Baldwin, mortgagee, B. U. Massey, trustee, defendants.' Stated first in the shortest form the case is this:

"Plaintiffs obtained a judgment against the owners of the Baldwin theater or opera house property for a small amount, and a lien against the property under the mechanic's lien law. A special execution issued on that judgment, and the property was sold by the sheriff. Mr. McAfee became the purchaser, as trustee, on behalf of plaintiffs and other holders of liens against the building for work and materials furnished toward its construction. Before the sale, but after the judgment of lien, Judge Philips, at chambers, as judge of the United States circuit court for the western district of Missouri, appointed a receiver of the theater property, in the suit of Lubbock et al., plaintiffs, v. Marion Davis, Ellen Davis, and A. B. Crawford, defendants, to foreclose a mortgage upon the same property. The order of appointment was of wide reach, and is said to be a barrier to the execution of the mechanic's lien judgment, pending the receivership. The plaintiffs in this case are not named as parties to the proceeding in the federal court. After the sale under the execution on the mechanic's lien judgment, the Jarvis-Conklin Mortgage Trust Company and Samuel M. Jarvis filed in the state court the motion which is the basis of this appeal. The principal grounds of the motion are that the sale was an interference with the receivership of the property established by the federal court, and was hence void. There are other reasons assigned in the motion which will be mentioned further on.

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