State ex rel. Cockrum v. Southern
Decision Date | 01 April 1935 |
Citation | 83 S.W.2d 162,229 Mo.App. 749 |
Parties | STATE OF MISSOURI EX REL. VEIGH COCKRUM ET AL., RELATORS, v. HON. ALLEN C. SOUTHERN, JUDGE, ETC., ET AL., RESPONDENTS |
Court | Kansas Court of Appeals |
Prohibition proceeding by State on relation of Veigh Cockrum and others against Allen C. Southern, Judge of Division No. 5 of the Circuit Court of Jackson County and another.
PRELIMINARY RULE QUASHED AND PERMANENT WRIT DENIED.
Alpha N. Brown for relators.
Charno & Drummond and Warren A. Drummond for respondents.
This is a proceeding wherein relators attempt to prohibit the Honorable Allen C. Southern, one of the judges of the Circuit Court of Jackson County and the Honorable Glenn Donaldson, a referee appointed by him, from proceeding further in a cause pending before said judge in which A. M. Dowell and J. M Dowell, co-partners, doing business as Dowell Brothers, are plaintiffs and Veigh Cockrum, Hattie Cockrum and Beulah Cockrum, are defendants. Upon the filing of the petition for the writ in this court one of the judges thereof issued a preliminary rule. Respondents have made their return and relators have filed their motion for judgment on the pleadings.
The facts disclosed by the pleadings show that the respondent, Southern, after having entered a decree for an accounting in said cause appointed respondent, Donaldson, to take the same. After the entry of the decree relators filed motions for a new trial and in arrest of judgment, which were overruled. While these motions were pending the referee served notices of hearings and fixed the date for the same to commence at a time prior to the time the motions for a new trial and in arrest of judgment were ruled upon by the court. The motions were disposed of adversely to relators whereupon the referee commenced hearings pursuant to said notices. At this stage of the proceedings this application for a writ of prohibition was made. Relators filed, in the trial court, a demurrer to the petition, which was overruled, also a motion to make the petition more definite and certain, which was likewise overruled. The grounds for the demurrer were that the petition failed to state facts sufficient to constitute an action in equity against the defendants and that several causes of action were improperly united in the petition. The petition reads as follows:
It is urged that the petition does not state a cause of action in equity for the reason that it is claimed that it shows on its face that plaintiffs have an adequate remedy at law and, if any cause of action is stated, it is an action at law. In support of this contention relators, among other authorities, cite the cases of Dahlberg v. Fisse, 40 S.W.2d 606; Palmer v. Marshall, 24 S.W.2d 229, and Sandwich Mfg. Co. v. Bogie, 298 S.W. 56.
We are unable to agree with the contention of the relators. The petition undoubtedly discloses that plaintiffs have a cause of action against the relator, Veigh Cockrum, for an equitable accounting. While the mere relationship of principal and agent affords no ground for an equitable accounting (2 C. J., p. 888), under the allegations of the petition it is apparent that the relationship between plaintiffs and defendant, Veigh Cockrum, was more than a mere agency but was that of principals and factor. It is well settled that such a relationship is a fiduciary one and constitutes the factor a quasi-trustee for the principal and a suit in equity against the factor for an accounting may be brought when the facts warrant a suit for an accounting.
Equitable jurisdiction over matters of account is said to be based upon three grounds, to-wit: The need of a discovery, the complicated character of the accounts and the existence of a fiduciary or trust relationship. Neither the need of discovery or the complicated character of the accounts, alone, constitute ground for equitable relief in this State. [Vogelsong v. Wood Fibre Plaster Co., 147 Mo.App. 578, 126 S.W. 804; Johnston v. Pump Co., 274 Mo. 414, 423, 202 S.W. 1143.] However, the existence of a fiduciary or trust relation is a basis of equitable jurisdiction in this State. "C...
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