State ex rel. Duggan v. Dillon

• Decision Date: 16 June 1888
• Citation: 31 Mo.App. 535
• Parties: STATE OF MISSOURI ex rel. MICHAEL DUGGAN, Petitioner, v. DANIEL DILLON et al., Respondents.
• Court: Missouri Court of Appeals

31 Mo.App. 535

STATE OF MISSOURI ex rel. MICHAEL DUGGAN, Petitioner, v. DANIEL DILLON et al., Respondents.

Court of Appeals of Missouri, St. Louis.

June 16, 1888

APPLICATION for a writ of prohibition.

Petition dismissed.

A. J P. GARESCHÉ , for the relator: Pending an appeal, the court had no right to make the order of distribution, because a violation of its own decision at the previous term in the same cause.By appeal it lost all jurisdiction of the case.Ladd v. Couzins,35 Mo. 513;Stewart v Stringer,41 Mo. 405;Baasen v. Eilers,11 Wis 77;Bryan v. Berry,3 Cal. 135;Levi v. Karrick,15 Iowa 444;Isler v. Brown,69 N.C. 125;Thomas v. Sullivan,11 Nev. 280;Whaley v. Charleston,8 S.C. 346;Holland v. State,15 Fla. 552." But writ of error or appeal lies."True, as a rule, this fact is an answer to a writ of prohibition, but not always.High on Ex. Rem. [2 Ed.]p. 632, sec. 789.In 20 N.Y. 531, the court divided as to the right of oyer and terminer to grant a new trial, but concurred unanimously, that if it erred, prohibition was the proper remedy.And especially do we cite: State v. Wilcox,24 Minn. 147;21 W.Va. 141, and authorities.And if the order be not a judgment as to the point that then this court has no jurisdiction, because an interference with the jurisdiction of the Supreme Court, there is an express answer in State v. Seay,23 Mo.App. 628.Was there an appeal?Why not?There was no recovery against Thornton, Duggan, or Kenrick.Under judgment rendered no execution could have issued for any sum not even for the costs.Freeman on Judgments[3 Ed.] sec. 51.All that the petition asked was, that as plaintiff held a judgment against Thornton which he could not collect, that its amount, principal, interest, and costs, should be a lien on the payments to Thornton accruing from the trust fund in the hands of Archbishop Kenrick.This the decree did do--found how much there was unpaid on this judgment and sequestrated for its payment the annuities then due and later to accrue to Thornton.The court had no right to go further in respect to Archbishop Kenrick.It has no jurisdiction of the fund in his hands.And especially it could not in this action, where the reversioners were not parties, and only the annuitant for life.Moreover, though, by the appeal, the judgment is superseded, that leaves in full force the order of January 18, 1887, which directed that the future payments to accrue should be by the archbishop paid into the hands of the clerk.So, too, this question of an appeal is res adjudicata.I assu me that somewhere resides the jurisdiction to determine it.And I assume that it resides in the circuit court whose duty it is to approve the bond and the sureties, with power during the term to set it aside for cause.But that having granted the appeal the case then becomes of the jurisdiction of the Supreme Court.If proper bond have been given, then the appeal is valid, the circuit court is stripped of its jurisdiction, the order of distribution void.Hence the writ prayed for must issue.If respondent be aggrieved his application must be to the Supreme Court.State v. Judges,47 Mich. 646;Keyser v. Farr,105 U.S. 266;State ex rel. v. Judge,30 La.Ann. 1016.

CUNNINGHAM & ELIOT, for the respondent: The writ of prohibition applied for by the relator should be denied.(1) Because by virtue of the appeal taken on the twenty-ninth of March in the case in the circuit court, jurisdiction of that appeal vested immediately in the Supreme Court of Missouri.That court being already possessed of that cause, this court should not interfere with its supervision of the inferior court touching that case.(2) This extraordinary remedy of a writ of prohibition will not be applied by courts except " in cases where the exigencies of the particular case make the exercise of the power an imperative duty in order to prevent the miscarriage of justice."State ex rel. v. Seay,23 Mo.App. 629." It should never be granted against the inferior tribunal except in cases where the usurpation of jurisdiction by that tribunal is clear."Ibid.(3) The writ of prohibition will not issue if the proceeding sought to be prohibited is only ministerial.High on Extra.Rem., sec. 769;State ex rel. v. Clark County,41 Mo. 44.The order of the circuit court entered on the eighth of May was a ministerial and not a judicial act.It did not seek to affect the decree already entered nor the merits of the controversy which had been adjudicated.High on Extra.Rem., sec. 769, and cases cited.(4) The writ if issued in this case would operate simply as a stay of execution of the decree of the circuit court.The only method provided by law for the stay of execution where an appeal has been taken, is the giving by the appellant or some one for him of a bond with sureties in a penalty double the amount for which judgment is rendered.Rev. Stat., sec. 3713.The giving of such a bond as will stay execution is a matter at the risk of the appellant, who alone is required if he desires to stay execution to see to it that his bond is sufficient under the statute to effect that object.Neither the trial court nor the court exercising supervisory control over the trial court can help the appellant if he fails to see to it that his bond is sufficient.State ex rel. v. Adams,9 Mo.App. 464.The stay of execution is in Missouri purely a matter of statute.Railroad v.Atkison, 17 Mo.App. 494;Statev. Horner, 10 Mo.App. 318.The language of the statute(sec. 3713) is imperative.It provides (speaking of the allowance by the court of an appeal), " such allowance thereof shall stay the execution in the following cases, and no others."Here the legislature has not only undertaken to prescribe the conditions precedent to a stay of execution, but it has expressly forbidden the courts to exercise any discretion whatever.If the sureties upon the bond are sufficient and the conditions of the bond are such as the statute prescribes, then the trial court is bound to accept the bond offered, no matter what its penalty.It is, therefore, absurd to say that because the trial court accepted a bond, that bond operated a stay of execution.Railroad v.Atkison, 17 Mo.App. 494, 495;State ex rel. v. Adams, supra.

OPINION

THOMPSON J.

This application arises in this way: On the sixteenth of June 1881, Michael Carroll recovered a judgment in the circuit court of Dubuque county, Iowa, against John Thornton for the sum of $4,499.00 with interest and costs.Thereafter Carroll commenced a suit in equity in the circuit court of the city of St. Louis, to sequester certain annuities payable to Thornton as life tenant by Peter Richard Kenrick, trustee.By consent, Archbishop Kenrick paid into court two semi-annual instalments of the profits of the estate held by him, and the court made an order that he should pay into court the successive instalments until the further order of the court, subject to his right of an allowance to be thereafter made, which should be taxed as costs in the cause.By agreement, Michael Duggan was made a partydefendant in the character of assignee of the interest of Thornton.In the meantime Carroll died, and the suit was revived in the name of Tittmann, public administrator.Thereafter such proceedings were had that, on the twenty-sixth day of January, 1888, a final decree was entered, charging the plaintiff's judgment on the rents, issues, and profits of the fund in the hands of Archbishop Kenrick, requiring him to pay the same into court for the use of the plaintiff until the amount found due by the decree should be satisfied, or until the death of Thornton should appear; directing the clerk of the court, after the payment of the costs, to pay the balance of the fund in his hands (paid into his hands by Archbishop Kenrick, as already stated) to the plaintiff Tittmann, and providing that the cause be retained for the further satisfaction of the decree in the manner aforesaid, until the same be fully satisfied, or until the death of the defendant Thornton be made to appear to the court.From this decree the defendant Duggan, professing to act for himself and the other defendants, prosecuted an appeal to this court, and gave an appeal bond, couched in the usual terms, in the sum of eight hundred and fifty dollars.The...