State ex rel. Ford v. Hogan

• Decision Date: 07 April 1930
• Docket Number: No. 29851.,29851.
• Parties: THE STATE EX REL. BERTHA E. FORD, RANDOLPH LAUGHLIN, LAURENCE D. HONIG and H.H. LAUMEIER v. GRANVILLE HOGAN, Judge of Division 15 of Circuit Court of City of St. Louis.
• Court: Missouri Supreme Court

27 S.W.2d 21

THE STATE EX REL. BERTHA E. FORD, RANDOLPH LAUGHLIN, LAURENCE D. HONIG and H.H. LAUMEIER v. GRANVILLE HOGAN, Judge of Division 15 of Circuit Court of City of St. Louis.

No. 29851.

Supreme Court of Missouri, Division No. 2.

April 7, 1930.

Prohibition.

PROVISIONAL RULE DISCHARGED.

Randolph Laughlin for relators.

(1) Where the petition for prohibition is verified by the oath of two of the relators, who are shown by its allegations to have been personally present at the transactions related therein, and where the return is filed out of time, without leave, and is not verified by the oath of the respondent, but is verified merely as to the belief of an attorney who is shown not to have been personally present at the transactions in dispute, the verified averments of the petition should be taken as true. Where the respondent wishes to raise an issue of veracity he should verify his return by his own oath. A verification of the mere belief of a person who was not present is hearsay and incompetent and is no verification at all. (2) Prohibition is the appropriate remedy. Where a judge is without jurisdiction to make an order, or is exceeding his jurisdiction in making an order, he should be prohibited from making or enforcing such order in the absence of adequate remedy by appeal. State ex rel. Savings Bank v. Hall, 12 S.W. (2d) 94. (3) Jurisdiction was lost by the appeal. The judgment in the main case, to which the motion was a mere incident, was rendered at the February term, 1929, and the appeal was granted on February 25, 1929, at that same term. Jurisdiction of such main case was thereby transferred to the appellate court, and the circuit court thereupon parted with every vestige of jurisdiction it theretofore had over said case. State ex rel. Bank v. Hall, 12 S.W. (2d) 91; State ex rel. Patton v. Gates, 143 Mo. 63; Reed v. Bright, 233 Mo. 399; Finley v. Railway Co., 238 Mo. 6; In re Grading Bledsoe Hill, 222 Mo. 604; Burgess v. O'Donohue, 90 Mo. 299. (4) Jurisdiction fails for want of necessary parties. Where the rights of innocent purchasers intervene, they must be made parties and given an opportunity to be heard. McKee v. Logan, 82 Mo. 524 (2); Hobein v. Murphy, 20 Mo. 488 (2); Chouteau v. Nuckolls, 20 Mo. 442; Otterson v. Mfg. Co., 84 Mo. App. 244. An original and independent bill in equity, making such intervening purchasers parties defendant, and giving them opportunity to assert equities in a court of general equity jurisdiction, is the recognized practice in such cases. Spring v. Giefing, 289 S.W. 828; Briant v. Jackson, 99 Mo. 585; Railroad v. Brown, 43 Mo. 249; Curd v. Lackland, 49 Mo. 451; Durfee v. Moran, 57 Mo. 374; Phillips v. Stewart, 59 Mo. 291; Walters v. Herman, 90 Mo. 529; Hardwich v. Hamilton, 121 Mo. 465; Knoop v. Kelsey, 121 Mo. 642. Even in those cases in which the court has undertaken to deal with the rights of purchasers on mere motion it has required, as conditions precedent to the exercise of its jurisdiction: First, That the complaining party "must act at once." Downing v. Still, 43 Mo. 309. Second. That the purchaser must be notified and given his day in court. McKee v. Logan, 82 Mo. 524. Defendant Ford was served with notice of levy on February 23rd. He did nothing. At the same time the sheriff made demand on him to perform his statutory duty, and to furnish the certificate, required for his own protection as well as for the protection of the plaintiff, by Section 1632. He defaulted in that obligation. The sale was held on March 14th, and again he defaulted. The sheriff's execution was returned into court on April 1st, and the sheriff's bills of sale executed on the same day. Thereby, under the doctrine of Downing v. Still, "The rights of third parties intervened," "he suffered the officer to deed to the purchaser" and "his acquiescence is presumed." Again, in McKee v. Logan, 82 Mo. 524, it is said (l.c. 528): "The plaintiff, the defendant and purchaser are all interested and their rights would in no manner be affected by the proceeding unless they had their day in court." Freeman on Ex., sec. 306; 3 Iowa, 331, 13 Iowa, 461. No notice whatever was given to any of the relators. Laughlin came into court as an amicus curiae, but Laumeier waived no notice, and as to him the jurisdiction sought to be exercised by respondent is clearly and utterly void. McKee v. Logan, 82 Mo. 528. (5) Jurisdiction was lost by lapse of term. The sale was on March 14th, during the February term. The motion over which respondent asserts jurisdiction was not filed until May 25th. The court's jurisdiction over the matters complained of by said motion lapsed with the lapse of the February term, independent of the fact that jurisdiction was ousted by appeal. City of Aurora v. Williams, 146 Mo. 509; McKee v. Logan, 82 Mo. 528; Neiman v. Early, 28 Mo. 475. See, also, State ex rel. v. Hall (Mo.), 12 S.W. (2d) 795; Butler v. Cantwell (Mo. App.), 287 S.W. 795. In Neiman v. Early, 28 Mo. 475, the court held that "the court had power over the execution of its process until the official return day." The following cases also mention "the return day" as the limit of the jurisdiction of the court: Ray v. Stobbs, 28 Mo. 25; Butler v. Cantwell (Mo. App.), 287 S.W. 795. (6) Jurisdiction was ousted by the affidavit for change of venue, independent of the above propositions, and of each of them. (a) This is not a proceeding for the alteration of a decree of divorce, or in continuation of the original action. It is not before the original Chancellor who tried the case. It does not involve solely the rights of the original parties, but extends to and includes the independent rights of purchasers who are entitled to their day in court and to an opportunity to be heard. Ordinarily an appellate court will not, by prohibition, interfere with a trial court granting a change of venue (State ex rel. Brady v. Evans, 184 Mo. 632), but here is a case where the error cannot be corrected on appeal. The mere sustaining of the motion will immediately give wings to the defendant and to all the assets of the Banner Loan Company, and put it beyond the power of any Missouri court ever to bring them back. This visible and overpowering equity should cause the court to limit the rule in State ex rel. Brady v. Evans, 182 Mo. 632 (2). The true limit should be the rule stated in a long line of cases, State ex rel. St. Charles Savings Bank v. Hall, 12 S.W. (2d) 795, being the most recent, that where the relator has no adequate remedy by appeal, prohibition will lie. (b) A trial judge often leans, sometimes unconsciously, against one litigant or in favor of another. Litigants should not be permitted to take unconscionable advantage of the frailties of human nature by lying in wait until some favored judge is assigned to the division in which his case is pending, and then sweep into action beyond the power of his adversary to escape by the only door which the law provides for that purpose, to-wit, a change of venue. "The law will not place its judicial officers in a situation where malice or prejudice or ill-will may have the means of making false imputations against them." State v. Gates, 20 Mo. 401, 403. (c) Impartiality is the first duty of a judge. Either interest or bias (even the slightest) disqualifies him and vitiates his action. The supreme law guarantees to all citizens a tribunal for the determination of causes upon whose disinterestedness not only the discarded and assaulted wife, but the whole community, may repose with perfect confidence, and any taint of interest or bias pollutes the fountain head of justice and is a denial of due process under the constitutions of both the Nation and the State. Tunney v. Ohio, 273 U.S. 523; Ex parte Baer, 20 Fed. (2d) 912; Jim v. State, 3 Mo. 177; State v. Gates, 20 Mo. 403; State ex rel. v. Slate, 278 Mo. 570; State ex rel. v. Wear, 129 Mo. 619; Fulweiler v. St. Louis, 61 Mo. 479; Fine v. Public Schools, 30 Mo. 166; State v. Davis, 225 S.W. (Mo.), 710; State v. Drew, 213 S.W. (Mo.), 106; State v. Jones, 197 S.W. (Mo.) 158; State v. Davis, 217 S.W. (Mo.) 91; Schmidt v. Railroad, 149 Mo. 269; State v. Alexander, 66 Mo. 163. (d) Even before the constitutional provision was invoked to secure to a citizen the impartial administration of justice, there was respectable authority for the proposition that the mere filing of an affidavit of bias and prejudice rendered the judge incompetent and disqualified him from hearing the case or exercising his judicial powers with respect to it. All acts done after the filing of the affidavit were held to be coram non judice. State v. Bulling, 100 Mo. 87; State v. Shipman, 93 Mo. 147; State v. Hayes, 81 Mo. 574; State v. Shea, 95 Mo. 85; State v. Greenwade, 72 Mo. 298; State v. Brownfield, 83 Mo. 448; Lacy v. Barrett, 75 Mo. 46; Corpenny v. Sedalia, 57 Mo. 88; Barnes v. McMullin, 78 Mo. 260; Dawson v. Dawson, 29 Mo. App. 521; Ex parte Bedard, 106 Mo. 625. (7) Independent prior jurisdiction attached. It appears from the petition (and was admitted in the original suggestions against granting the writ) that the respondent, on May 17, 1929, gave carte blanche to the relator Laughlin to institute in other courts whatever proceeding he saw fit to protect the rights of himself and his associates, and that acting on the leave thus granted the said Laughlin caused another proceeding to be instituted in another division of the circuit court which involves the same claims of right to the disputed stock as are presented by the motion pending before respondent. This motion was not filed until May 25, 1929, and in the meantime the jurisdiction of another court had attached to the res. That jurisdiction having attached by the consent of respondent, has priority and cannot be ousted or divested by him. Davidson v. Hough, 165 Mo. 561; Capitain v. Trust Co., 240 Mo. 480; State ex rel. Terry v. Allen, 308 Mo. 230.

Earl M. Pirkey for respondent.

(1) The return is not...