State ex rel. Eagleton v. Cameron

• Decision Date: 14 December 1964
• Docket Number: No. 2,No. 49720,49720,2
• Citation: 384 S.W.2d 627
• Parties: STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General Appellant, v. Manuel CAMERON, Respondent
• Court: Missouri Supreme Court

Page 627

384 S.W.2d 627

STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General Appellant, v. Manuel CAMERON, Respondent.

No. 49720.

Supreme Court of Missouri, Division No. 2.

Dec. 14, 1964.

Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for appellant.

Walter D. McQuie, Jr., Montgomery City, for respondent.

STOCKARD, Commissioner.

The Attorney General of Missouri, as authorized by Section 198.160 (statutory references are to RSMo 1959, V.A.M.S.), filed a petition on April 26, 1962, in the Circuit Court of Warren County whereby he sought to enjoin respondent's alleged operation of a nursing home when he had not obtained the license required by Chapter 198.

In addition to the request for a permanent injunction, appellant prayed for a temporary injunction 'pending a final determination of this action.' On May 1, 1962, the trial court issued its order to respondent that he appear on May 5, 1962, and 'then and there show cause why a temporary injunction as prayed by plaintiff should not be granted.' See Sections 198.160 and 526.050 for the authority of a court to grant a temporary injunction, and Civil Rules 92.02 and 92.19, V.A.M.R., for the procedure pertaining thereto. At the appointed time respondent appeared with counsel, but instead of assuming the burden as contemplated by Civil Rule 92.19, and specifically set forth in the show-cause order, the Attorney General (of his own volition as far as shown by the record) assumed the burden, at least of going forward with the evidence, and presented the testimony of eight witnesses, including that of respondent and his wife. At the conclusion of all the evidence the court entered its judgment wherein it stated that the respondent 'having been notified to be and appear before the Court on this date to show cause why a temporary injunction as prayed by plaintiff should not be granted, appears in person and with counsel, * * * and the parties announce ready for hearing and evidence is adduced on the merits of this cause.' The court then found that appellant 'has not proven the allegations of the petition; that * * * [respondent] is not providing maintenance, personal care or nursing service for three or more individuals not related to him, who by reason of illness, physical infirmities or advanced age are unable to care for themselves; and that defendant is not providing sheltered care to three or more individuals not related to him, which sheltered care includes treatment and service which meet needs of said individuals beyond their basic requirement for food, shelter and laundry.' It was then decreed that 'the temporary injunction sought by plaintiff not issue and is not granted, and plaintiff's petition is dismissed with costs taxed against plaintiff.' (Italics added). The Attorney General has appealed.

The first point in appellant's brief is that the trial court erred 'in dismissing plaintiff's petition after the hearing on the temporary injunction and its refusal to permit a hearing on the application for a permanent injunction for the reason that refusal to grant a temporary injunction is not a final determination of the cause where the petition was unchallenged as to form or sufficiency.'

At the time of the hearing on May 5, respondent had not filed his answer, and it was not then due. Insofar as the question is governed by the pleadings, whether the State was entitled to a permanent injunction was not an issue then subject to determination. Whether the petition was subject to being dismissed on the ground of insufficiency could have been raised but was not. Respondent did not then, and does not now, challenge the sufficiency of the petition and the trial court did not dismiss it on that ground.

Civil Rule 92.02 and Section 526.050 authorize the issuance of a temporary injunction 'when it shall appear by the petition' that the plaintiff is entitled to the relief demanded, and (1) such relief or any part thereof consists in restraining the commission or continuance of some act of the defendant, the commission or continuance of which, during the litigation, would produce injury to the plaintiff, or (2) when, during this litigation, it shall appear that the defendant is doing, or threatens, or is about to do, some act in relation to plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual. This latter situation is not involved in this case. Civil Rule 92.19 provides that when a temporary injunction is requested, and it is deemed proper by the trial court, the defendant 'should be heard,' that is, be afforded an opportunity to show why a temporary injunction should not be granted. Neither Civil Rule 92.19 nor any other rule contemplates that at the hearing on the show-cause order pertaining to a temporary injunction, there shall be a trial of the merits of the request for a permanent injunction, which frequently would not and in this case was not at issue on the pleadings. There is no requirement nor is it necessarily contemplated that at the hearing on the show-cause order plaintiff will present all of its evidence on the merits of the request for a permanent injunction, and as previously mentioned, Civil Rule 92.19 does not necessarily contemplate that any evidence from plaintiff is necessary. The burden is expressly placed on the defendant to show cause why the temporary injunction should not be issued. Therefore, when the petition is sufficient, and by it plaintiff seeks to enjoin permanently the commission or continuance...