State ex rel. Bowling Green Trust Co. v. Barnett

• Decision Date: 02 July 1912
• Citation: 149 S.W. 311,245 Mo. 99
• Parties: THE STATE ex rel. BOWLING GREEN TRUST COMPANY, EQUITABLE TRUST COMPANY OF NEW YORK, METROPOLITAN TRUST COMPANY OF THE STATE OF NEW YORK, GEORGE J. GOULD, EDWIN GOULD, ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, and WABASH RAILROAD COMPANY v. JAMES D. BARNETT, Judge of Audrain Circuit Court
• Court: Missouri Supreme Court

149 S.W. 311

245 Mo. 99

THE STATE ex rel. BOWLING GREEN TRUST COMPANY, EQUITABLE TRUST COMPANY OF NEW YORK, METROPOLITAN TRUST COMPANY OF THE STATE OF NEW YORK, GEORGE J. GOULD, EDWIN GOULD, ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, and WABASH RAILROAD COMPANY v. JAMES D. BARNETT, Judge of Audrain Circuit Court

Supreme Court of Missouri

July 2, 1912

Writ allowed.

James L. Minnis for relators; Wells H. Blodgett, Martin L. Clardy and Nagle & Kirby of counsel.

(1) The demurrer admits all the substantial, material and traversable allegations of the petition.State ex rel. v. Eby,170 Mo. 522.(2) The suit in the circuit court does not involve or seek to affect any real or personal property situated within the jurisdiction of that court.By Sec. 1674 R. S. 1899, the jurisdiction of circuit courts is confined to the respective counties in which they may be held.The question, then, is whether the suit in the circuit court involves or seeks to affect any real or personal property situate in Audrain county.This question must be determined from the facts stated in the bill, for it has been often said by this court that "an allegation of a conclusion of law raises no issue, need not be denied, and is as though it had not been pleaded."Mallinckrodt v. Nemnich,169 Mo. 397.(3) The only relief asked with respect to property (aside from the bonds and stocks hereinafter mentioned) is a decree adjudging the debenture mortgage a lien on the railroad property of the Wabash Company prior to the lien of the refunding mortgage.As said by the court in State ex rel. v. L. & L. Co.,171 Mo. 671, "The character of the action is determined by the facts stated in the petition and not by the prayer for relief;" or, as said in State ex rel. v. Dearing, 180 Mo. 63, "Moreover, the jurisdiction of the court is not determined by the prayer for relief, but by the facts stated which constitute the cause of action."On the authority of these cases, this part of the prayer may be disregarded, because it is contrary to the facts averred in the bill.According to the bill the debenture mortgage was not only executed more than sixteen years prior to the refunding mortgage, but the refunding mortgage expressly recognizes the debenture mortgage as constituting a prior lien.The first paragraph of the prayer of the bill is therefore merely colorable.The only reference to property is that the Wabash Company conveyed by the debenture mortgage "certain lines of railroad, roadbed rolling stock, rights of way and other properties, both real and personal, as in said mortgage more particularly described, a large part of which real property and much of said personal property then were and now are situate in Missouri."This language does not identify any property.In any event, it cannot be claimed that it describes any property situate in Audrain county.It is true the bill states that the railroad property above mentioned is fully described in the debenture mortgage and that a copy thereof is attached to the bill as an exhibit, but this court has often ruled, that an exhibit forms no part of the record of a cause.State ex rel. v. Crum,157 Mo. 545.The order of publication does not describe any property except the bonds and stock hereafter mentioned.Sec. 575, R. S. 1899;Winning v. Trueblood,149 Mo. 572.If the railroad property referred to in the bill had been described therein and in the order of publication, the posture of the case would not have been changed, as we shall hereafter show.(4) The only object of the suit is to obtain a decree adjudging that the exchanged debenture bonds now held in New York by the Bowling Company or its successor, the Equitable Company as trustee under the collateral provisions of the refunding mortgage, have been paid and requiring that they be canceled.The only object of the suit in the circuit court is to obtain a decree adjudging the exchanged debenture bonds now held in New York by the Bowling Company, or its successor, the Equitable Company, have been paid, and appropriate orders to make such decree effective.(5)The circuit court has not jurisdiction of the subject-matter of the action.The circuit court has no jurisdiction, on notice by publication, to enter a decree in a suit against nonresident trustees, and some of the nonresident beneficiaries, but not all the beneficiaries, adjudging or affecting the status of property held in trust in a sister State.Sec. 1674, R. S. 1899;Penoyer v. Neff,95 U.S. 714;Carr v. Coal Co.,96 Mo. 155.(6)The circuit court has not jurisdiction of the persons of the nonresident defendants.State ex rel. v. Dearing,180 Mo. 62;Sec. 575, R. S. 1899.(7)The circuit court has not jurisdiction to enter a decree or order against the resident defendants.No relief is asked against the Iron Mountain Company.The relief prayed against the Wabash Company is predicated upon a decree against the Trust Companies adjudging that the exchanged bonds have been paid.The disposition of the case as to the Trust Companies would therefore seem to dispose of the case as to the other codefendants.But it is elementary law that a court of equity has not jurisdiction to enter an order against any defendant in a case unless it has before it all the parties necessary to a complete determination of the litigation.Harris v. Pullman,84 Ill. 20.(8) The United States Circuit Court has jurisdiction not only of the matters stated in the bill in that suit, but of the entire subject-matter of the debenture mortgage and bonds -- which may be properly brought to the attention of that court by an amended or supplemental bill; and its jurisdiction excludes the jurisdiction of any other court over any part of the subject-matter of that suit.State ex rel. v. Reynolds,209 Mo. 261;Byars v. McCauley,149 U.S. 608;Porter v. Sabin,149 U.S. 473;Shields v. Coleman,157 U.S. 168.(9) Where a mortgage provides that the trustee alone shall sue, a bondholder cannot sue, unless the trustee refuses to sue, or otherwise disregards his obligations as trustee, in which event it is necessary that these facts should be averred, and that the trustee should be joined as a defendant in the suit.Cook on Corp.(6 Ed.), Sec. 826;Railroad v. Fisher,104 Va. 121;Electric Co. v. Electric Co.,87 F. 590;Consolidated Co. v. City,92 F. 759;Morgan v. City, 15 F. 55.

Barclay, Fauntleroy & Cullen for respondent.

(1) The writ of prohibition goes only to restrain the assumed exercise of jurisdiction where none exists.If the court whose action is complained of acts within its jurisdiction but commits an error, the writ of prohibition will not lie.Want of prohibition cannot be made to serve the purpose of a writ of error or certiorari.State ex rel. v. Withrow,108 Mo. 1;State ex rel. v. Railroad,100 Mo. 59;State ex rel. v. Scarritt,128 Mo. 331;State ex rel. v. Johnson,132 Mo. 105;State ex rel. v. Moelenkamp,132 Mo. 134;State ex rel. v. Wood,155 Mo. 425;Wand v. Ryan,166 Mo. 646;State ex rel. v. Henderson,164 Mo. 347;Delaney v. Court,167 Mo. 667;Davison v. Hough,165 Mo. 573;Schubach v. McDonald,179 Mo. 163.(2) The debenture bonds and mortgage gave to the holders of said bonds the right to elect one-half of the highest officers, one-half of the members of the board of directors of the Wabash Company, and to vote at all meetings of the stockholders of the Wabash Company, and therefore the plaintiffs in this case have a right to complain of the illegal increase or overissue of stock, and to maintain a bill in equity to set aside and cancel same.1 Cook on Corporations(6 Ed.), Secs. 291 and 297.(3) By the express words of the statute service by publication may be obtained in suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of liens against either real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court, and such language is broad enough to include such actions as the one now pending in Audrain county. State ex rel. v. Ross, 122 Mo. 461;Railroad v. Poching Co.,46 F. 584;Mitchener v. Holmes,117 Mo. 185;Smith v. Mining Co.,47 Mo.App. 409;Clark v. Brotherhood,99 Mo.App. 687.(4)The statute authorizing service by publication does not require that the publication contain a detailed description of the property, except in suits for the partition of land.In an action similar to the one now being considered the publication need only state "briefly the object and general nature of the petition."In cases involving liens, created by contract, jurisdiction arises out of the lien, which is the basis of the action.The same rule applies as in attachment cases.Randall v. Snyder,214 Mo. 33;Williams v. Lobban,206 Mo. 408;Harris v. Grodner,42 Mo. 159.(5) It is admissible to a certain extent in pleading in chancery to file written exhibits, and to refer to them as part of the bill.This may be done in general terms, and the exhibits may be referred to for greater certainty as to particular details.When a bill, as in this case, not only refers to, but makes a certain instrument a part of the bill itself, such instrument may be used in aid of an indefinite statement.Tel. Co. v. Tel. Co.,34 F. 803;Hood v. Inman, 4 Johns. Ch.(N. Y.) 437;Land Co. v. Foundry Co.,96 Ala. 389;Moore v. Titman,33 Ill. 357;Electrolibration Co. v. Jackson,52 F. 773;Hastings v. Belden,55 Vt. 273;Surget v. Byers, Hempst.(U.S.) 715;Board v. Board,154 F. 238;Williard v. Davis,122 F. 363.This court has considered an exhibit as part of the pleading and of the record proper, and that ruling was adhered to on motion for...