State ex rel. City of St. Charles v. Becker

• Citation: 83 S.W.2d 583,336 Mo. 1187
• Parties: State of Missouri at the Relation of the City of St. Charles, a Municipal Corporation, Relator, v. William Dee Becker, Edward J. McCullen and Jefferson D. Hostetter, Judges of the St. Louis Court of Appeals
• Decision Date: 05 June 1935
• Court: Missouri Supreme Court

83 S.W.2d 583

336 Mo. 1187

State of Missouri at the Relation of the City of St. Charles, a Municipal Corporation, Relator, v. William Dee Becker, Edward J. McCullen and Jefferson D. Hostetter, Judges of the St. Louis Court of Appeals

Supreme Court of Missouri

June 5, 1935

Opinion of Court of Appeals quashed in part.

William F. Achelpohl, Jesse H. Schaper and Randolph H. Schaper for relator.

(1) The St. Louis Court of Appeals erred by its decision in this case in denying that the jurisdiction of the trial court was dependent only on one of two things -- either to dismiss plaintiff's bill of interpleader or to sustain it and order the defendants to interplead -- and in holding that the trial court acted within its jurisdiction in rendering its judgment in favor of the defendants and against the plaintiff for the amounts prayed for in their answers, and in so doing failed to follow the last controlling decisions of this court, for the following reasons: Matlack v. Kline, 280 Mo. 139; Roselle v. Farmers' Bank, 119 Mo 84; Glasner v. Weisberg, 43 Mo.App. 214; State ex rel. v. Kumpff, 62 Mo.App. 335; Granite Bituminous Paving Co. v. Stange, 8 S.W.2d 1087. (a) Reply of plaintiff must be general. In interpleader suits the action is in equity. The plaintiff is a mere stakeholder and he cannot assume hostile positions either to one or to the other of the rival claimants, and, therefore, the reply of plaintiff to the answers of the defendants, as in the case at bar, was general, and must be so, and a departure therefrom is improper and must be treated as surplusage. In equity the replication must be general. Matlack v. Kline, 280 Mo. 163; Story's Eq. Pl., secs. 678, 878; Bliss on Code Pleading, section 396. (2) The St. Louis Court of Appeals erred by its decision in this case in holding that the relator, city of St. Charles, was the owner and consignee and made itself party to the contract of transportation by accepting each of the carloads of oil and became liable to the defendant, Wabash Railway Company, for the freight charges thereon under the bills of lading themselves -- contrary to the agreed statement of facts referred to in its opinion, and in so holding, it failed to follow the last controlling decisions of this court for the following reasons: Interstate Commerce Act, Comp. Stat. No. 8563; Louisville & N. Railroad Co. v. Cen. Iron & Coal Co., 265 U.S. 59, 44 S.Ct. 441; Turner Looker Co. v Hindman, 298 Mo. 67; Kemper Mill & Elevator Co. v. Hines, 293 Mo. 105; Natl. Bank v. Ry. Co., 132 Mo. 500; U.S. Comp. Stat. 1918, Sec. 8604-d, Compact Ed., p. 1374; Dillon on Municipal Corporations (1 Ed.), 1872, p. 367; Keating v. Kansas City, 84 Mo. 415; Chenny v. Brookfield, 60 Mo. 54; Verdin v. St. Louis, 131 Mo. 98. (3) The St. Louis Court of Appeals erred by its decision in this case in holding that the defendant trust company and defendant bank were entitled to judgment on the pleadings and without the introduction of any evidence in this case and that the judgment so rendered in their favor on their counterclaims by the trial court was proper, and in so holding, it failed to follow the last controlling decisions of this court for the following reasons: Chouteau v. Allen, 70 Mo. 290; United Shoe Mach. Co. v. Ramlose, 210 Mo. 654; Bobb v. Taylor, 56 Mo. 313; 5 C. J., pp. 962, 963.

B. H. Dyer, R. B. Elster and Homer Hall for respondents.

(1) In an original proceeding in certiorari under the Constitution of Missouri, Article VI, Section 8, Amendment 1884, the Supreme Court cannot quash the opinion of the Court of Appeals unless the latter has announced some principle of law contrary to and in conflict with a controlling decision of the Supreme Court. State ex rel. Buick v. Daues, 323 Mo. 388, 19 S.W.2d 700; State ex rel. Am. School of Osteopathy v. Daues, 323 Mo. 411, 18 S.W.2d 487. (2) In original proceeding in certiorari the Supreme Court does not determine whether the decision of the Court of Appeals is correct or incorrect, but only whether the decision conflicts with a controlling decision of the Supreme Court. The writ, under the Constitution, cannot be made to perform the office of a writ of error. State ex rel. K. C. Theological Seminary v. Ellison, 216 S.W. 967; State ex rel. v. Allen, 256 S.W. 1049; State ex rel. Am. Packing Co. v. Reynolds, 287 Mo. 697, 230 S.W. 642; State ex rel. Lehrack v. Trimble, 308 Mo. 597, 274 S.W. 416; State ex rel. v. Haid, 324 Mo. 130, 22 S.W.2d 1048. (3) In a proceeding in certiorari to a Court of Appeals the burden is on the relator to show that the decision under review clearly contravenes a previous controlling decision of the Supreme Court upon the same, or a similar state of facts, and unless the decision under review does clearly so conflict, the Supreme Court has no right or authority to interfere with, or to supervise, the findings of fact and conclusions of law announced by the Court of Appeals. Absent a conflict with a former ruling of the Supreme Court on the same or similar facts, the Court of Appeals has an inherent right to determine the issues involved, whether its rulings be right or wrong. State ex rel. v. Haid, 324 Mo. 130, 22 S.W.2d 1048; State ex rel. v. Allen, 256 S.W. 1049; State ex rel. v. Daues, 323 Mo. 411, 19 S.W.2d 700; State ex rel. v. Reynolds, 287 Mo. 169, 229 S.W. 1057; State ex rel. v. Reynolds, 289 Mo. 506, 233 S.W. 483; State ex rel. v. Allen, 294 Mo. 214, 242 S.W. 77; State ex rel. v. Trimble, 250 S.W. 384; State ex rel. Gatewood v. Trimble, 62 S.W.2d 756; State ex rel. K. C. Theological Seminary v. Ellison, 216 S.W. 970; State ex rel. Quercus Lbr. Co. v. Robertson, 197 S.W. 82. (4) On certiorari, the Supreme Court must take the facts as stated in the opinion of the Court of Appeals. State ex rel. Wahl v. Reynolds, 272 Mo. 288, 199 S.W. 978; State ex rel. English v. Trimble, 320 Mo. 1113, 9 S.W.2d 624; State ex rel. Kurz v. Bland, 64 S.W.2d 638; State ex rel. Olson v. Allen, 253 S.W. 1012; State ex rel. v. Reynolds, 200 S.W. 1039; State ex rel. Shawhan v. Ellison, 273 Mo. 218, 200 S.W. 1042. (5) Parties are bound on appeal by the theory on which the case was tried in the lower court. Toroian v. Parkview Amusement Co., 331 Mo. 700, 56 S.W.2d 135; Merrielees v. Ry. Co., 163 Mo. 486, 63 S.W. 718; Plannett v. McFall, 284 S.W. 853; Bratschi v. Loesch, 51 S.W.2d 70; In re Guardianship of McMenamy, 307 Mo. 109, 270 S.W. 662; Chinn v. Naylor, 182 Mo. 594, 81 S.W. 1109.

OPINION

Frank, C. J.

This case, recently came to the writer on reassignment. It is certiorari to the St. Louis Court of Appeals to quash an opinion of that court in the case of the City of St. Charles, Missouri, Appellant, v. Wabash Railway Company, a Corporation, The Liberty Central Trust Company of St. Louis, Missouri, a Corporation, and National City Bank of St. Louis, a Corporation, Respondents, 65 S.W.2d 655. For brevity we will refer to appellant in that cause as the city, and to the respondents as the railway, the trust company, and the bank.

The cause is labeled as an interpleader action. We will state from the opinion of the Court of Appeals facts sufficient to determine the alleged conflict with controlling decisions of this court, and refer the reader to 65 S.W.2d 655, where the opinion is reported, for a detailed statement of the facts.

It appears that in February, 1921, the city contracted with Success Products Oil Company for the purchase of a quantity of road oil. The oil company agreed to pay the freight on the oil from the point of shipment in Oklahoma to the city of St. Charles. The city agreed to pay for the oil on or before January 20, 1922. Pursuant to the contract of purchase ten carloads of oil were shipped to and accepted by the city. The bill of lading for each of these cars recited, "Consigned to order of Success Oil Products Company, Destination St. Charles, Mo." It further appears that the oil company sent the bills of lading to the railway with instructions to deliver the oil to the city without the bills of lading, and stating that the bill for the freight was being sent to the oil company's office for payment. Pursuant to such instructions, the railway delivered the oil to the city. For value received, the oil company assigned the invoices for nine of the carloads of oil to respondent, trust company, and one to the respondent, bank. The city knew of and recognized the assignments of the invoices as above stated. On presentation of the invoices by the trust company, the city paid the trust company in full for the first seven carloads of oil. Before paying for the remaining three cars, the city discovered that the oil company had not paid the freight on these three cars as it had agreed to do when the oil was purchased. The invoices of two of these three cars were held by respondent, trust company, and the invoice to the remaining car was held by respondent, bank. When the bank and the trust company demanded payment for these last three cars of oil, the city paid the trust company the amount of the invoices which it held for the two cars, less the sum of $ 413.55 which it withheld to cover the unpaid freight charges on the two cars, and paid the bank the invoice which it held for the last car, less the sum of $ 205.12 retained to cover unpaid freight charges. The railway was demanding that the city pay the freight charges on these three cars of oil, and the trust company and the bank were demanding that the city pay them the $ 618.67 which it had withheld from the purchase price of the three cars of oil until the freight charges were adjusted.

In face of these conflicting claims the city filed in the Circuit Court of St. Charles County what it denominates a bill of interpleader, against the railway, the trust company and the bank. The bill alleged all of the facts and...