State Civ. Defense Salv. Comm. v. Horner et al., 6574.

• Decision Date: 02 May 1945
• Docket Number: No. 6574.,6574.
• Citation: State Civ. Defense Salv. Comm. v. Horner et al., 187 S.W.2d 976, 238 Mo.App. 787 (Mo. App. 1945)
• Parties: STATE EX REL. OFFICE OF CIVILIAN DEFENSE SALVAGE COMMITTEE, CITY OF CARTHAGE, JASPER COUNTY, ET AL., RESPONDENTS, v. JACK HORNER ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

187 S.W.2d 976

STATE EX REL. OFFICE OF CIVILIAN DEFENSE SALVAGE COMMITTEE, CITY OF CARTHAGE, JASPER COUNTY, ET AL., RESPONDENTS, v.JACK HORNER ET AL., APPELLANTS.

No. 6574.

Springfield Court of Appeals. Missouri.

May 2, 1945.

Rehearing denied June 5, 1945.

Appeal from the Circuit Court of Jasper County.— Hon. John H. Flanigan, Judge.

REVERSED.

Roy Coyne, Elza Johnson and R.A. Mooneyham for appellants.

Plaintiffs' petition does not state facts sufficient to give the circuit court jurisdiction.The petition fails to set forth or allege in detail affirmatively any facts which show plaintiffs to be without remedy at law and to be irreparably damaged, but alleges in general terms that they will be irreparably damaged.The petition is fatally defective and does not give the court jurisdiction.State of Mo. ex rel. Barnett School District v. Barton, 104 S.W. (2d) 284, l.c. 288-289."Such allegations of facts in a petition are jurisdictional and their absence may be taken advantage of by the adversary party at any time or place or at any stage of the proceedings, or the court of its own motion without the suggestion of counsel or the point being raised, may raise the objection.""This is the rule laid down by the Supreme Court of the United States and the Supreme Courts of a number of States."Benton County v. Morgan, 163 Mo. 661, l.c. 678."The mere allegation in an injunction petition that the plaintiff has no adequate remedy at law is a mere statement of a conclusion of law and is not in and of itself a sufficient allegation of inadequacy of a remedy at law."Thomas v. City of Malden, 118 S.W. (2d) 1059, l.c. 1063;Quinn v. Schneider, 118 Mo. App. 39;Hodson v. Walker et al., 170 Mo. App. 632, 94 S.W. 72;Schuster v. Myers, 148 Mo. 422, l.c. 429, 50 S.W. 103."Failure affirmatively to plead facts showing lack of adequate and complete remedy at law constitutes fatal omission of necessary jurisdictional facts.""A reading of the petition will show that there is a failure to plead affirmatively facts showing lack of adequate and complete remedy at law.It is generally held that one seeking equitable relief must plead facts showing that he has no adequate remedy at law.A case very much in point where this question is discussed at length with the citation of many authorities in Palmer v. Marshall, 24 S.W. (2d) 229, l.c. 233."Bragg v. Specialty Shoe Machinery Co., 225 Mo. App. 902, 34 S.W. (2d) 184, 188.The petition does not allege the insolvency of the defendants or any of them and for this reason is fatally defective.Hunter v. Mathewson, 149 Mo. 601;Waterman v. Johnson, 49 Mo. 410;Gordon v. Mansfield, 84 Mo. App. 367."Injunction granted on insufficient petition should be dissolved."C.H. Albers Com. Co. v. Milliken, 245 Mo. 368;State ex rel. Barnett v. Barton, 104 S.W. (2d) 287;Marbury v. City of Farmington, 5 S.W. (2d) 677."Equity courts do not interfere by injunction for the purpose of controlling the acts of Public Officers constituting inferior tribunals on matters properly pertaining to their jurisdiction since proper remedy is at law."Hughes v. State Board of Health, 137 S.W. (2d) 523, 345 Mo. 995."The right injunction must be predicated upon wrongful and injurious invasion by defendant of some right existing in the plaintiff."Howe v. Standard Oil Co., 150 S.W. (2d) 496;State ex rel. Mo. Pacific v. Williams, 221 Mo. 227, 229;State ex rel. Sewer Dist. v. McElhaney, 52 S.W. (2d) 400;Ex parte v. Gounis, 304 Mo. 428."Sufficiency of petition for injunction may be attacked by motion to dissolve a temporary injunction in the same manner as by general demurrer."Wegenka v. St. Joseph(Mo. App.), 212 S.W. 71;Marbury v. City of Farmington, 5 S.W. (2d) 677."And this attack can be made before or after answer is filed."There is a misjoinder of partiesplaintiff a most casual reading of the petition will disclose that fact.The Statutes of Missouri, section 849 for 1939 provides that suits must be brought in the name of the real parties in interest.State to use Connelly v. Parkville Gr. Co., 32 Mo. 496;Troll v. St. Louis, 257 Mo. 626, l.c. 720."It was held in Gill v. Ferris, 82 Mo. 156, l.c. 168, that misjoinder of partiesplaintiff in an injunction suit is grounds for demurrer."Gill v. Evans, 82 Mo. 156, l.c. 168;Hillard on Injunction, page 154, sec. 112;State of Mo. ex rel. Connelly v. Parkville Gr. Co., 32 Mo. 496;State ex rel. Sewer District v. McElhaney, 52 S.W. (2d) 400, l.c. 402."Where the State has no interest, legal or equitable it cannot properly be made a partyplaintiff and bond should be required before issuance of writ or the order will be void."Parkville v. Gro. Co., 32 Mo. 496;Troll v. St. Louis, 257 Mo. 626, l.c. 720;State ex rel. Sewer Dist. v. McElhaney, 52 S.W. (2d) 400."Injunction will not lie between parties where the ownership of personal property is in dispute between them but the title to the property must first be established by an action at law before injunction relief will be granted."Arnold v. Klepper, 24 Mo. 273;Primm v. White, 162 Mo. App. 594."It has been held that equity will enjoin the threatened loss or destruction of personalty only where there is an heirloom, wedding present or property of great sentimental value and where the loss or injury will be irreparable and where there is lack of adequate remedy at law."Hill v. Brothers, 217 S.W. 581."Injunction will not lie to restrain the disposition of personal property on which the purchase price has not been paid;"Spitz v. Kerfoot, 42 Mo. App. 77, nor to prevent a cloud on title to personal property.Carroll v. Campbell, 108 Mo. 550."The court exceeds its jurisdiction when it issues a preliminary injunction without bond in cases where such bond is required by statute."Section 1671, R.S. 1929;Thrash v. Lamb, 237 Mo. 437;Bayless v. Gibbs, 251 Mo. 492;State ex rel. Jines v. Foard, 251 Mo. 51;Commissioner Company v. Spencer, 236 Mo. 608;State ex rel. Mo. Pacific v. Williams, 221 Mo. 227, 120 S.W. 740."Injunction will not lie to prevent the doing of a legal wrong when the petitioners have an adequate legal remedy."Walker v. Norris, 145 S.W. (2d) 972;Thompson v. City of Malden, 118 S.W. (2d) 1064.The judgment must be based on and supported by and must follow the petition.The prayer generally is no part of the petition."It is an elementary rule that courts of equity are powerless to administer redress beyond the legitimate scope of the pleadings of the parties."Newham v. Kenton, 79 Mo. 382;Whiting v. Land & Sheep Co., 265 Mo. 382;Scott v. Luehrmann, 278 Mo. 648.There are eight separate plaintiffs named in the petition all praying for injunctive relief while the judgment rendered by the court is a money judgment in favor of only one of the plaintiffs against defendants.Newham v. Kenton, 79 Mo. 382;Whiting v. Land Co., 265 Mo. 382;Scott v. Luehrmann, 278 Mo. 648."Parties must recover according to the allegations and proof."Roden v. Helm, 90 S.W. 798, 192 Mo. 71;Black v. Early, 106 S.W. 1028, 208 Mo. 281.

H.Tiffin Teters, R.A. Esterly, and Herbert Van Fleet for respondents.

The appellants, having failed to demur before filing their original answer, waived their grounds for demurrer by answering; and if the motion to dissolve the injunction should be construed to take the place of a demurrer, the appellants waived this point by answering over after that motion was overruled.The appellants had no right, after having filed two answers in the case, and having taken a change of venue, to withdraw their last answer and file a demurrer.State ex rel. v. Sullivan, 283 Mo. 546, 224 S.W. 327, 332;Secs. 922and926, R.S. Mo. 1939;Finney v. Randolph, 68 Mo. App. 557, 560;State to the Use of Saline Co. v. Sappington, 51 Mo. 454, 457;Paddock v. Somes, 102 Mo. 226, 235;Jones v. K.C., Ft. S. & M. Railway Co., 178 Mo. 528, 538.On demurrer, all facts well pleaded, and all inferences to be drawn from the facts, are admitted; and a judgment on demurrer is the same as a judgment on the merits.Farm & Home Savings & Loan Assn. v. Armstrong, 85 S.W. (2d) 461;34 C.J. 173, Sec. 386;Custer v. Kroeger, 280 S.W. 1035, 1037.Respondents' petition pleads facts sufficient to show that the appellants hold the funds involved in the action as trusteesex maleficio or trustees of a constructive trust, and a court of equity has inherent jurisdiction of such a case, even though the facts might also disclose a remedy at law, 65 C.J. 1011, sec. 940;65 C.J. 1015, sec. 943;65 C.J. 488, sec. 231;Lucas v. Central Missouri Truck Co., 166 S.W. (2d) 1053, 1057;State ex rel. v. Johnson, 68 S.W. (2d) 858, 860.Respondents' petition stating a case of equity, the circuit court of Jasper county not only had jurisdiction of the case, but the right to issue the injunction.State ex rel. v. Wood, 155 Mo. 425, 445;State ex rel. v. Flynn, 159 S.W. (2d) 379, 382.Since respondents' petition pleads a case in equity, the facts that the pleading also may reveal a possible remedy at law will not defeat the action.Ellenburg v. Edward K. Love Realty Co., 59 S.W. (2d) 625, 628;State ex rel. v. Smith, 135 S.W. (2d) 355, 359.A court of equity may enjoin a trustee from committing acts prejudicial to the cestui que trust, even though the consequences of the act are not irremediable.65 C.J. 999, 1000, sec. 926.Injunction will lie to prevent the misapplication or misappropriation of funds, public or private.Black v. Ross, 37 Mo. App. 250;State ex rel. v. Cook, 136 S.W. (2d) 142, 146.An injunction may be used by a court of equity to maintain the status quo, even though an adequate remedy at law may exist.32 C.J. 63, Sec. 43;Titus v. Tolle, 223 S.W. 885, 887.The State of Missouri is a proper partyplaintiff, having both an equitable and moral interest in the proper application of funds collected indirectly from the public.32 C.J. 295, sec. 474;49 Am. Jur. 292 to 294, sec. 80;State ex rel. v. McElhinney, 52 S.W. (2d) 400,...