State ex rel. Brickey v. Nolte, No. 38252.

CourtMissouri Supreme Court
Writing for the CourtDalton
Citation169 S.W.2d 50
Decision Date02 March 1943
Docket NumberNo. 38252.
PartiesSTATE OF MISSOURI at the relation of NORVILLE W. BRICKEY, Relator, v. JULIUS R. NOLTE, Judge of the Circuit Court of Division No. I of St. Louis County, Missouri, and JOHN A. NOLAN, Referee, Respondents.
169 S.W.2d 50
STATE OF MISSOURI at the relation of NORVILLE W. BRICKEY, Relator,
v.
JULIUS R. NOLTE, Judge of the Circuit Court of Division No. I of St. Louis County, Missouri, and JOHN A. NOLAN, Referee, Respondents.
No. 38252.
Supreme Court of Missouri.
Division One, March 2, 1943.

[169 S.W.2d 51]

Prohibition.

WRIT DENIED.

Cullen Coil, Roland F. O'Bryen and Williams, Nelson & English for relator.

(1) Jurisdiction is in the Supreme Court, as this is an application for writ of prohibition, and an appeal from the judgment in the lower court would be to the Supreme Court. State ex rel. Sale v. Nortoni, 201 Mo. 1, 98 S.W. 554; State ex rel. Wurdeman v. Reynolds, 275 Mo. 113, 204 S.W. 1093; Sec. 3, Art. VI, Const. of Missouri. (2) Prohibition proper procedure to prohibit the circuit judge from enforcing an order where he does not have jurisdiction. State ex rel. Caulfield v. Sartorius, 344 Mo. 919, 130 S.W. (2d) 541; State ex rel. Hyde v. Westhues, 316 Mo. 457, 290 S.W. 443; Sec. 3, Art. VI, Const. of Missouri. (3) The circuit court did not have jurisdiction under the pleadings and evidence adduced to order an equitable accounting, as the pleadings and evidence showed beyond question that plaintiff had an adequate remedy at law. Palmer v. Marshall, 24 S.W. (2d) 229; Bennett v. Crane, 220 Mo. App. 607, 289 S.W. 26; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W. (2d) 606; Robert v. Davis, 235 Mo. App. 974, 142 S.W. (2d) 1111. (4) There was not any service of any kind on N.W. Brickey. The statutes provide the only way a person can be summoned into court and made a party defendant, and they were not complied with in this case. R.S. 1939, sec. 880 (General Service Statute); R.S. 1939, sec. 891 (Publication Statute); R.S. 1939, sec. 900 (Nonresident Statute); R.S. 1939, sec. 972 (New Party Statute); R.S. 1939, secs. 1043-1044-1045 (Proceedings after death and manner of reviving); 15 C.J. 798; State ex rel. Mueller Baking Co. v. Calvird, 338 Mo. 601, 92 S.W. (2d) 184; B.F. Glover & Son Comm. Co. v. Abilene Milling Co., 136 Mo. App. 365, 116 S.W. 1112; Kepley v. Park Circuit & Realty Co., 200 S.W. 750. (5) He had to be summoned or enter his appearance. Neither were complied with, hence the court did not have jurisdiction. 1 Houts' Mo. Pleading & Practice Annotated, p. 61; 47 C.J. 143; 12 C.J. 1227; 21 C.J.S. 123; State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 330 Mo. 1015, 56 S.W. (2d) 28; State ex rel. Angold v. Utz, 236 S.W. 386; State ex rel. Federal Reserve Life Ins. Co. of Kansas City, Kan., v. Wright, 88 S.W. (2d) 427; Henneke v. Strack, 101 S.W. (2d) 743. (6) To allow the court to proceed in this manner deprives him of due process. Sec. 30, Art. II, Const. of Missouri; Sec. 1, Amend. XIV, Const. of United States; Amend. V, Const. of United States; 50 C.J., 467; 16 C.J.S. 1245; State ex rel. Quincy, Omaha & Kansas City Railroad Co. v. Myers, 126 Mo. App. 544, 104 S.W. 1146; State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 330 Mo. 1015, 56 S.W. (2d) 28; State ex rel. Deems v. Holtcamp, 245 Mo. 655, 151 S.W. 153.

Thompson, Mitchell, Thompson & Young and R. Forder Buckley for respondents.

(1) It is the general rule that an application for a writ of prohibition will not be considered unless a plea to the jurisdiction has been filed and overruled in the lower court, or the inferior tribunal has been asked in some form, without avail, to refrain from further proceeding, or to dismiss the same. State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 331 Mo. 1015, 56 S.W. (2d) 28; State ex rel. Burns v. Shain. 297 Mo. 369, 248 S.W. 591; State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303; State ex rel. Attorney General v. Gill, 137 Mo. 681, 39 S.W. 276; Forsee v. Gates, 89 Mo. App. 577; State ex rel. Jones v. Laughlin, 9 Mo. App. 486; Barnes v. Gottschalk, 3 Mo. App. 111; 4 Houts, Missouri Pleading and Practice, sec. 1227, p. 465; 42 American Jurisprudence, sec. 38, p. 172; 50 Corpus Juris, sec. 98, p. 695. (2) It is elementary that a writ of prohibition will not issue to perform the function of either appeal or writ of error. Missouri Sup. Ct. Rule, No. 32; State ex rel. Stone v. Thomas, 159 S.W. (2d) 600; State ex rel. Caulfield v. Sartorius, 344 Mo. 919, 130 S.W. (2d) 541; State ex rel. Hyde v. Westhues, 316 Mo. 457, 290 S.W. 443; State ex rel. Burns v. Shain, 297 Mo. 369, 248 S.W. 591; State ex rel. Mueller v. Wurdeman, 232 S.W. 1002; State ex rel. Elam v. Henson, 217 S.W. 17; State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191; Wand v. Ryan, 166 Mo. 646, 65 S.W. 1025; State ex rel. Laclede Bank v. Lewis, 76 Mo. 370; In re Bowman, 67 Mo. 146; 4 Houts, Missouri Pleading and Practice, sec. 1222, p. 445. (3) Even if the petition had wholly failed to state a cause for equitable accounting, the petition was filed over three and one-half years before relator sought prohibition, during all of which time the case was being actively litigated, and relator would be barred by his laches and neglect from now asserting this alleged right. 50 C.J., sec. 104, p. 700; Galloway v. Le Croy, 169 Ark. 838, 277 S.W. 35; People v. Conejos County Court, 74 Colo. 40, 218 Pac. 745; People v. Sixth Judicial Dist. Co., 54 Colo. 576, 131 Pac. 424; People v. Wotherspoon, 94 Misc. 419, 157 N.Y.S. 923. (4) Under Missouri law, and generally, there are three grounds for jurisdiction to compel an accounting in equity, to wit: the need of a discovery, the complicated character of the account, and the existence of a fiduciary relationship. All three of these requirements are satisfied in the petition here in question. Dahlberg v. Fisse, 328 Mo. 214, 40 S.W. (2d) 606; State ex rel. Cockrum v. Southern, 229 Mo. App. 749, 83 S.W. (2d) 162; Johnston v. McCluney, 80 S.W. (2d) 898; Boden, v. Johnson, 226 Mo. App. 787, 47 S.W. (2d) 155; 1 C.J.S., sec. 14, p. 646; 1 Am. Jur;, sec. 52, p. 298. (5) It is the universal rule that equity may order an accounting wherever there is a fiduciary relationship, even though there is an adequate remedy at law. This rule applies to all acts amounting to breach of trust on the part of persons occupying relations of confidence. Robert v. Davis, 235 Mo. App. 974, 142 S.W. (2d) 1111; State ex rel. Cockrum v. Southern, 229 Mo. App. 749, 83 S.W. (2d) 162; Johnston v. McCluney, 80 S.W. (2d) 898; Wagner v. Eisenmenger, 65 S.W. (2d) 108; Boden v. Johnson, 226 Mo. App. 787, 47 S.W. (2d) 155; People v. Small, 319 Ill. 437, 150 N.E. 435; 1 C.J., sec. 68, pp. 621, 622, 623; 1 C.J.S., sec. 19, pp. 655, 656. (6) Directors of a school district in Missouri are trustees. Consolidated School Dist. No. 6 of Jackson County v. Shawhan, 273 S.W. 182. (7) A school district in Missouri is a public corporation. State ex rel. v. Whittle, 333 Mo. 705, 63 S.W. (2d) 100; City of Edina v. School Dist. of Edina, 305 Mo. 452, 267 S.W. 112; State ex rel. Richart v. Stouffer, 197 S.W. 248. (8) Directors of a corporation occupy a fiduciary relationship to the corporate body. Yellow Mfg. Acceptance Corp. v. American Taxicabs, 344 Mo. 1200, 130 S.W. (2d) 601; Bromschwig v. Carthage Marble & White Lime Co., 334 Mo. 319, 66 S.W. (2d) 889; Clubb v. Davidson, 95 Mo. 467, 8 S.W. 545; Ward v. Davidson, 89 Mo. 445, 1 S.W. 846; Bent v. Priest, 86 Mo. 475. (9) A special trust was placed in relator by the other members of the Board of Directors of the School District in the handling of the School District's funds. This in itself created a fiduciary relationship between the School District and the relator. Liddel v. Lee, 159 S.W. (2d) 769. (10) The petition in prohibition must state unequivocally every fact necessary to authorize the issuance of the writ; and the issues made upon the petition and return thereto cannot be broadened, nor additional issues brought into the case, by relator's reply. R.S. 1939, sec. 1776; State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303; State ex rel. Haughey v. Ryan, 180 Mo. 32, 79 S.W. 429; Barnes v. Gottschalk, 3 Mo. App. 222; 4 Houts, Missouri Pleading and Practice, sec. 1230, p. 479. (11) Where a suit is pending against the trustee of a convict, the suit does not abate upon the release of the convict, but, upon suggestion of his release, the court may, without more, order the case continued against him in lieu of said trustee. This rule is, a fortiori, applicable where, as here, before conviction and sentence, the defendant was personally served with process and for over two and one-half years actively participated in the defense of the case. New v. Smith, 86 Kan. 1, 119 Pac. 380; Moss v. Hyer, 172 S.E. 795; 18 C.J.S., sec. 7, p. 105; 13 C.J., sec. 10, p. 917. (12) Valuable analogies are furnished by other situations where it is held there is no abatement of a pending action, no necessity for revivor and new service of process, and a mere substitution of parties suffices. (a) Missouri statute regarding the transfer of interest in any pending action. R.S. Mo. 1939, sec. 1055. (b) Missouri statute regarding substitution of person previously supposed dead for his administrator. R.S. 1939, sec. 270. (c) Suits against guardians on infant's attaining majority. Robinson v. Hood, 67 Mo. 660; Renfro v. Metropolitan Life Ins. Co., 148 Mo. App. 258, 129 S.W. 444; Shattuck v. Wolf, 72 Kan. 366, 83 Pac. 1093; Mo. Pac. Ry. Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837; Bonnette v. Flournoy, 119 So. 736; 31 C.J., sec. 329½, pp. 1156, 1157. (13) The sole purpose of the Missouri statutes providing for the appointment of a trustee for property of an incarcerated convict is to protect the property rights of the convict while he is incarcerated, and nothing more. Wamsley v. Snow, 331 Mo. 261, 53 S.W. (2d) 258; Murphy v. Barron, 275 Mo. 282, 205 S.W. 49; McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21. (14) The sole effect of the said Missouri statute is to suspend the civil rights during the term of the incarceration; all the disabilities...

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5 practice notes
  • Stark v. Cole, No. 23868
    • United States
    • Court of Appeal of Missouri (US)
    • December 2, 1963
    ...her petition, to re-enter judgment for defendant. All concur. --------------- 1 Citing: State ex rel. Brickey v. Nolte, 350 Mo. 842, 169 S.W.2d 50; State ex rel. Barker v. Chicago & A. R. Co., 265 Mo. 646, 178 S.W. 129. Also see: Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Robert v. Davi......
  • Thompson v. Bond, No. 74 CV 91-C.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • October 15, 1976
    ...prisoner must have a trustee appointed to protect his estate when a third party files an action against him, State v. Nolte, 350 Mo. 271, 169 S.W.2d 50 (Mo.1943); Wamsley v. Snow, 331 Mo. 261, 53 S.W.2d 258 (Mo.1932); Murphy v. Barron, 275 Mo. 282, 205 S.W. 49 (Mo.1918); McLaughlin v. McLau......
  • State ex rel. St. Louis Housing Authority v. Gaertner, No. 66429
    • United States
    • Missouri Supreme Court
    • August 7, 1985
    ...Carrollton School District v. Gordon, 133 S.W. 44 (Mo. banc 1910). School districts are public corporations. State v. Nolte, 350 Mo. 842, 169 S.W.2d 50 (1943). Public corporations may be municipal corporations. State ex rel. Milham v. Rickhoff, 633 S.W.2d 733 (Mo. banc 2 Mo. Const. Art. VI,......
  • State ex rel. Community Heating & Air Conditioning Co. v. Schwartz, No. 33434
    • United States
    • Missouri Court of Appeals
    • February 24, 1970
    ...for the operation of a business and a division of all profits made under the contract. In State ex rel. Brickey v. Nolte, 350 Mo. 842, 169 S.W.2d 50, which held that an officer and member of a school district board of directors occupies a fiduciary relationship to the district, the court st......
  • Request a trial to view additional results
5 cases
  • Stark v. Cole, No. 23868
    • United States
    • Court of Appeal of Missouri (US)
    • December 2, 1963
    ...her petition, to re-enter judgment for defendant. All concur. --------------- 1 Citing: State ex rel. Brickey v. Nolte, 350 Mo. 842, 169 S.W.2d 50; State ex rel. Barker v. Chicago & A. R. Co., 265 Mo. 646, 178 S.W. 129. Also see: Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Robert v. Davi......
  • Thompson v. Bond, No. 74 CV 91-C.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • October 15, 1976
    ...prisoner must have a trustee appointed to protect his estate when a third party files an action against him, State v. Nolte, 350 Mo. 271, 169 S.W.2d 50 (Mo.1943); Wamsley v. Snow, 331 Mo. 261, 53 S.W.2d 258 (Mo.1932); Murphy v. Barron, 275 Mo. 282, 205 S.W. 49 (Mo.1918); McLaughlin v. McLau......
  • State ex rel. St. Louis Housing Authority v. Gaertner, No. 66429
    • United States
    • Missouri Supreme Court
    • August 7, 1985
    ...Carrollton School District v. Gordon, 133 S.W. 44 (Mo. banc 1910). School districts are public corporations. State v. Nolte, 350 Mo. 842, 169 S.W.2d 50 (1943). Public corporations may be municipal corporations. State ex rel. Milham v. Rickhoff, 633 S.W.2d 733 (Mo. banc 2 Mo. Const. Art. VI,......
  • State ex rel. Community Heating & Air Conditioning Co. v. Schwartz, No. 33434
    • United States
    • Missouri Court of Appeals
    • February 24, 1970
    ...for the operation of a business and a division of all profits made under the contract. In State ex rel. Brickey v. Nolte, 350 Mo. 842, 169 S.W.2d 50, which held that an officer and member of a school district board of directors occupies a fiduciary relationship to the district, the court st......
  • Request a trial to view additional results

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