Scarritt Estate Company v. Johnson
| Decision Date | 13 May 1924 |
| Docket Number | 24920 |
| Citation | 262 S.W. 373,303 Mo. 664 |
| Parties | THE SCARRITT ESTATE COMPANY v. NELSON E. JOHNSON, Judge of Circuit Court of Jackson County |
| Court | Missouri Supreme Court |
Rehearing Denied May 13, 1924.
Preliminary rule made absolute in part and discharged in part.
W W. Graves, Jr., and Scarritt, Jones, Seddon & North for plaintiff.
(1) Petitioner was entitled to forfeit the lease in question and retake possession of the leased property. No pleading was filed in answer to the intervening petition, the court gave no reasons therefor in his order denying said intervening petition, and the answer and return of the trial judge to the preliminary writ of prohibition in this court sets out no specific facts or reasons for denying the prayer of the intervening petition. (2) The provisions for forfeiture and termination of the lease are valid and enforceable. 24 Cyc 1348; Denecke v. Miller, 142 Iowa 486. (3) The fact that a receiver had been appointed for the lessee and was in possession of the demised premises does not affect the right to forfeit. O'Dell v. Batterman, 223 Fed. (C. C. A.) 292; Lindeke v. Assn. Realty Co., 146 Fed. (C. C. A. 8th Cir.) 630; Eyton v. Railroad Co., L. R. 6 Eq. 14, 16; Park v. Railroad Co., 57 F. 799, 802. (4) The trial court was not justified in detaining this property from the owner by virtue of a fifteen-year lease preceding the ninety-nine year lease in question. (a) There was no person or corporation in court claiming any right, title, interest or possession under and by virtue of said fifteen-year lease. The action of the trial court in voluntarily undertaking to appoint Zumbrunn receiver of the Kansas City Amusement Company or as receiver of A. E. Elliott as trustee for the Amusement Company was wholly unwarranted and the trial court, in so doing acted without any jurisdiction, and wholly beyond its lawful power. There was no petition or other pleading filed by any party setting out any ground for the appointment of a receiver of the Kansas City Amusement Company or praying for the appointment of any such receiver. A judgment or order entered by an equity court not based upon or within the issues made by the pleadings is coram non judice, and void, State ex rel. v. Muench, 217 Mo. 124; White v. Britton, 51 S. E. (S. C.) 547. (b) It cannot be successfully urged that The Scarritt Estate Company did not have full title to the demised premises so as to make the ninety-nine-year lease, at the time it was made. Neither the Elliott Theatre Enterprises Corporation, defendant in this receivership case, nor the receiver thereof, nor the plaintiffs in the receivership case, who appear as such solely by reason of being stockholders in the Elliott Theatre Enterprises Corporation, can be heard to deny the title of The Scarritt Estate Company. It is elementary law that a lessee cannot deny his landlord's title. Higgins v. Turner, 61 Mo. 249; Iowa Savings Bank v. Frink, 92 N.W. 916; 24 Cyc. 911; Kinsman v. Greene, 16 Me. 60. (5) Prohibition is a proper available remedy. State ex rel. v. Muench, 217 Mo. 124; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Riley, 203 Mo. 175; State ex rel. v. Rombauer, 105 Mo. 103.
Thomas H. Reynolds for defendant; Lathrop, Morrow, Fox & Moore, of counsel.
(1) When a court of equity acquires jurisdiction of a cause and of the parties, it is its duty to do full, adequate and complete justice between the parties. Real Estate Saving Inst. v. Collonious, 63 Mo. 290; Hurst Automatic Switch & Signal Co. v. Trust Co., 291 Mo. 54; Gloyd v. Gloyd, 293 Mo. 163. (2) It is not the purpose of the writ of prohibition to correct errors of a trial court where the acts complained of are within its jurisdiction. St. Louis, Kennett & Southern Railroad Co. v. Wear, 135 Mo. 230; State ex rel. Connors v. Shelton, 238 Mo. 281; State ex rel. v. Riley, 203 Mo. 175; State ex rel. v. Muench, 217 Mo. 124; State ex rel. Mills v. Calhoun, 234 S.W. 855; State ex rel. Hoffman v. Scarritt, 128 Mo. 331; State ex rel. Wilson v. Burney, 193 Mo.App. 326; Havemeyer v. Superior Court, 24 P. 121; State ex rel. v. Moehlenkamp, 133 Mo. 134; State ex rel. Warde v. McQuillin, 262 Mo. 256. (3) Where a party, even a stranger to a receivership proceeding, submits his right to the court for adjudication, he is not entitled to writ of prohibition to restrain the court from determining those rights. State ex rel. v. McClure, 133 P. 1063.
This is an original proceeding in prohibition against defendant as Judge of the Circuit Court of Jackson County to prohibit him from enforcing certain orders in a case pending before him.
The plaintiff is a Missouri corporation and owns the fee to Lots 76, 77, 78 and 79, Ross & Scarritt's Addition, to Kansas City, Missouri. A brick building, adapted to theater and business purposes and known as Grand Theater, occupies said lots. On July 25, 1922, plaintiff, as lessor, and Elliott Theatre Enterprises Corporation, as lessee, entered into a lease for ninety-nine years from July 1, 1922, whereby the lessee agreed to pay certain rentals, taxes and insurance premiums and to make certain alterations and improvements upon the leased premises, with provision for forfeiture of the lease for failure of lessee to perform the terms and conditions thereof.
On December 24, 1922, there was filed in the Circuit Court of Jackson County a suit wherein J. C. Hartman and F. P. McClure were plaintiffs and Elliott Theatre Enterprises Corporation was defendant. Hartman and McClure were each holders of one share of preferred stock and one bond of said corporation under a trust agreement, and were also creditors of the lessee corporation. They alleged the existence of their own and other claims against the corporation, mismanagement of the corporate business, and danger of irreparable loss if creditors were permitted to sue for and collect their demands against the corporation by sale of its assets under execution, and prayed for the appointment of a receiver and for an injunction. On December 8, 1922, W. F. Zumbrunn was appointed receiver of said corporation and an injunction was granted as prayed. The receiver was ordered to continue the business of the Elliott Theatre Enterprises Corporation. He gave the required bond, took possession of the property of the corporation, including the leased premises, and operated the same.
On June 2, 1923, default was made in the terms and provisions of the lease, which the Elliott Theatre Enterprises corporation was required to perform, and on that day plaintiff in this case gave notice of such default and that forfeiture would be declared in thirty days unless the terms of the lease were complied with. On July 5, 1923, plaintiff gave notice of forfeiture to Elliott Theatre Enterprises Corporation, W. F. Zumbrunn, receiver, and Home Deposit Company. The latter was trustee for the bondholders of the lessee.
On July 5, 1923, plaintiff herein filed in the case of Hartman et al. v. Elliott Theatre Enterprises Corporation, its intervening petition for the order of the court for the receiver to deliver to plaintiff possession of the leased premises or to authorize plaintiff to bring action in unlawful detainer or other proper action against said receiver to obtain possession of the leased premises. Plaintiff stated that it limited its appearance in said case to the purposes of its intervening petition only. It is unnecessary to recite all of the allegations of said intervening petition. In substance, it alleged certain defaults in performance of the terms of said lease, including failure to pay rents, taxes, insurance premiums, to keep the leased premises in repair and to make certain alterations in and improvements upon the buildings, as required by the terms of the lease.
On July 10, 1923, all parties appeared and trial was had of the issues made by plaintiff's intervening petition. No pleadings were filed in opposition to said intervening petition. The evidence adduced at the hearing was transcribed, and is attached to plaintiff's petition in this court as an appendix thereto. On said date defendant, sitting as judge of said Jackson County Circuit Court, made the following order:
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