State ex rel. Burtrum v. Smith

• Citation: 206 S.W.2d 558,357 Mo. 134
• Decision Date: 08 December 1947
• Docket Number: 40473
• Parties: State of Missouri ex rel. Myrtle Burtrum, Maggie Barlow and C. R. Barlow, Relators, v. Emory E. Smith, Judge of the Circuit Court of the 24th Judicial Circuit of the State of Missouri
• Court: United States State Supreme Court of Missouri

206 S.W.2d 558

357 Mo. 134

State of Missouri ex rel. Myrtle Burtrum, Maggie Barlow and C. R. Barlow, Relators, v. Emory E. Smith, Judge of the Circuit Court of the 24th Judicial Circuit of the State of Missouri

No. 40473

Supreme Court of Missouri

December 8, 1947

Prohibition and Contempt.

Absolute rule in prohibition issued. Contemnors discharged.

R A. Mooneyham for relators.

(1) It is elementary law that when a court of competent jurisdiction once possesses jurisdiction of the parties to and the subject matter of any legal proceedings, such court retains and continues to have exclusive jurisdiction until same is fully determined. 11 Cyc., pp. 985, 1003 and cases cited; Sec 1526, R.S. 1939. (2) The Circuit Court of Jackson County, Missouri, has exclusive jurisdiction of the divorce case and all questions involved therein including the question of the custody of the child, Ronald R. Burtrum. Sec. 1526, R.S. 1939; Meredith v. Krautoff, 191 Mo.App. 149; Thornton v. Thornton, 221 Mo.App. 1199; Tomlinson v. French, etc., 232 Mo.App. 597; Id., 109 S.W.2d 73; Salkey v. Salkey, 80 S.W.2d 735; State v. Huhn, 346 Mo. 695; Id., 142 S.W.2d 1064. (3) That when said case was appealed and a supersedeas bond given that court and all other inferior courts were deprived of all authority to make any orders affecting said decree except the appellate court to which the case was appealed. State ex rel. Gray v. Hennings, 194 Mo.App. 545; State ex rel. v. Bird, 253 Mo. l.c. 589. (4) Ignorance of the law is no excuse for violating the "stop order" or preliminary writ issued by Judge Tipton in this matter on the -- day of May, 1947. 13 C.J., p. 44, sec. 60. (5) Advice of counsel under the facts and circumstances in this case is no defense. State ex rel. v. Koon, 201 S.W.2d 446; 13 C.J., p. 43, sec. 57; 17 C.J., p. 52, sec. 38. (6) The protestations of "Reverance" for this court as set out in paragraph 4 of his answer and return is no defense but a hollow mockery and adds insult to the intelligence of this court. Want of intention by contemnor is not defense. Ex parte Nelson, 251 Mo. 63; 13 C.J., p. 45, sec. 61. (7) To render a person amenable for violating an injunction, it is neither necessary that he should have been a party to the suit in which the injunction was issued, nor have been served with a copy thereof so long as he appears to have actual notice. In re Coggshall, 100 Mo.App. 585; 4 Houts', Pleading & Practice, p. 203, sec. 1037.

Wayne V. Slankard and Ruark & Ruark for respondent.

(1) Where there is jurisdiction of a general class of cases, the court has authority to determine whether or not that jurisdiction has been lost or exhausted. State v. Wear, 145 Mo. 162. (2) It has the right to determine its own jurisdiction. Mahon v. Fletcher's Estate, 245 S.W. 372; 15 C.J., p. 851. (3) Its want of jurisdiction must be affirmatively shown, and will not be presumed from a silent record. State v. Wear, supra; State v. Baker, 246 Mo. 357. (4) The Circuit Court of Newton County had jurisdiction of the person, thus the general jurisdiction to issue the writ of habeas corpus. Barrett v. Barrett, 79 S.W.2d 506. (5) Having jurisdiction to issue the writ, the court was authorized and required to proceed with the cause. Even though the final determination of the writ might be in excess of jurisdiction, or illegal, or void, nevertheless such did not deprive the court of the power to hear the cause. Martin v. State, 12 Mo. 472; State ex rel. v. Wurdeman, 183 Mo.App. 28; State v. McKee, 150 Mo. 233. (6) And the proper remedy for relator if aggrieved is by certiorari. State v. Buckner, 200 S.W. 94; Wilson v. Beckstresser, 45 Mo. 283. (7) Depending on what the record would show, when the evidence was finally in, the court may have properly entered an order affecting the custody of the child. If Joe Burtrum had custody of the child (Ronald R. Burtrum) at the time of the institution of the divorce suit in Kansas City. Secs. 1526, R.S. 1939; State v. Huhn, 142 S.W.2d 1064. (8) As an emergency measure to protect the child's health or morals if found to be endangered. In re Delano, 37 Mo.App. 185; 39 C.J.S., sec. 41, p. 571; McMillin v. McMillin, 158 P.2d 444, 160 A.L.R. 396; State ex rel. McCanliss v. McCanliss, 255 N.Y. 456. (9) A preliminary writ of prohibition not having been issued at the time of alleged violations could not be used as the basis for contempt proceedings. High, Extraordinary Legal Remedies (2nd Ed.), p. 642; (10) A writ of prohibition may be directed only against those clothed with judicial power. State ex rel. Conran v. Duncan, 333 Mo. 673; State ex rel. Phillips v. Barton, 300 Mo. 76; State ex rel. v. Bright, 224 Mo. 514; 13 C.J., pp. 6, 10; Sec. 1773, R.S. 1939; State ex rel. Karbe v. Bader, 336 Mo. 259; Thompson v. Farmers Exchange Bank, 62 S.W.2d 803; Fiedler v. Bambrick Cons. Co., 142 S.W. 1111, 162 Mo.App. 528; Ex parte Martin, 330 Mo. 1142; 17 C.J.S., p. 23. (11) A writ of prohibition prevents the exercising of unwarranted judicial power, and acts other than judicial acts are not within its purview. State ex rel. v. Ross, 136 Mo. 259; State ex rel. Phillips v. Barton, 300 Mo. 76; 13 C.J., p. 15; Ex parte Le Mond, 245 S.W. 1057; Kelly v. City of Cape Girardeau, 89 S.W.2d 693; Terminal Railroad Assn. v. United States, 69 L.Ed. 150; Delaney v. Police Court, 167 Mo. 667; State ex rel. Conran v. Duncan, 333 Mo. 673; State ex rel. v. Tracy, 237 Mo. 109. (12) Any part of preliminary writ of prohibition which is beyond or in excess of purview of such writ is unauthorized and invalid. State ex rel. Stroh v. Klene, 276 Mo. 206; State ex rel. v. Ross, 136 Mo. 259; 17 C.J.S., p. 16. (13) Even if the writ might properly include parties to the original action there could be no contempt until they were properly served by the writ. Secs. 1776, 1779, 1268, R.S. 1939; 17 C.J.S., p. 23; Ex parte Le Mond, 245 S.W. 1057, 295 Mo. 586; Ex parte Martin, 330 Mo. 1142; Ex parte Creasy, 243 Mo. 679, 148 S.W. 914; In re Heffron, 179 Mo.App. 639; Kelly v. City of Cape Girardeau, 230 Mo.App. 137; Ex parte Wade v. Bash, 340 Mo. 828.

OPINION

Ellison, J.

This is an original proceeding in prohibition filed in this court last May by relators Mrs. Myrtle Burtrum and her parents, Mr. and Mrs. C. R. Barlow, and directed to the respondent, Hon. Emory E. Smith, Judge of the circuit court of Newton County. Consolidated for hearing with it is a citation for alleged contempt of this court in the prohibition case, issued by us in June on the complaint of Myrtle Burtrum and directed to Joe Burtrum (divorced husband of Myrtle Burtrum) and his second wife, Norma Burtrum. Both cases arise out of the same general set of facts, and are submitted on the pleadings. The cause was argued here last October.

The prohibition case challenges Judge Smith's jurisdiction to proceed in a habeas corpus case filed in his court last April by the said Joe Burtrum against his divorced wife Myrtle (and her said parents). In that habeas corpus proceeding he sought to obtain custody of Ronald R. Burtrum, the seven year old child of the divorced couple. She contends Judge Smith cannot adjudicate the custody of the child in the habeas corpus case because that issue was decided in 1945 by the Jackson County circuit court in her divorce case, which is now pending on appeal in the Kansas City Court of Appeals. In the latter case Myrtle Burtrum, as plaintiff, was awarded a decree of divorce from Joe Burtrum, $ 6000 alimony, and care and custody of the minor child Ronald during the months of September to May, inclusive, of each year, Joe Burtrum to have such care and custody during the months of June, July and August.

Myrtle Burtrum appealed to this court from all of the decree except the part granting the divorce, and gave a supersedeas bond. But we transferred the cause to the Kansas City Court of Appeals in June, 1946, for want of appellate jurisdiction here, and the appeal was pending there at the time of the events upon which the instant habeas corpus and contempt proceedings are based. None of these events occurred during the three summer months when Joe Burtrum rightfully would have care and custody of the child under the circuit court's divorce decree. And Judge Smith's counsel do not contend he was ignorant of the divorce decree and the pendency of the appeal therefrom, when he assumed jurisdiction of the habeas corpus proceeding and took certain steps therein, though he alleges he has done nothing in that case since the instant prohibition proceeding was filed. Counsels' position on that point is that Judge Smith had jurisdiction of the habeas corpus proceeding notwithstanding the pendency of the divorce case, for reasons presently to be stated.

As to the contempt proceeding. The written complaint of Myrtle Burtrum therein was filed here on June 6. It alleged that on May 21, five days after her petition for prohibition had been filed and our preliminary writ in prohibition had been issued on May 16, the said Joe Burtrum and his second wife, Norma Burtrum, with full knowledge of those facts, nevertheless conspired to entice the minor child Ronald Burtrum from the home and custody of his mother, Myrtle Burtrum, in violation of Sec. 4416, R.S. 1939-Mo. R.S.A.; and four days later, on May 25, feloniously assaulted her and took the child from her custody and possession by force -- all of which is alleged to be in contempt of this court.

Our records do show that Myrtle Burtrum's petition in prohibition was filed here on May 16, but our preliminary writ was not issued until July 7, the same day our citation for contempt was issued. However, our records further show that when the petition in prohibition was filed on May 16 our clerk sent the usual telegraphic stop order to Judge Smith notifying him thereof....