State ex rel. Gary Realty Co. v. Hall

• Decision Date: 25 May 1929
• Citation: 17 S.W.2d 935,322 Mo. 1118
• Parties: The State ex. rel. Gary Realty Company v. Willard P. Hall, Judge of Jackson County Circuit Court
• Court: Missouri Supreme Court

17 S.W.2d 935

322 Mo. 1118

The State ex. rel. Gary Realty Company v. Willard P. Hall, Judge of Jackson County Circuit Court

Supreme Court of Missouri

May 25, 1929

Preliminary rule made absolute

Cooper & Neel and Wright & Warrick for relator.

(1) This court's mandate being regular on its face respondent's sole duty is to obey the mandate and execute its judgment, and he is wholly without power or jurisdiction to entertain any motion or other proceeding seeking to set aside or vacate the judgment, the execution of which is directed by the mandate of this court. Gary Realty Co. v Swinney, 297 S.W. 43; Powell v. Bowen, 240 S.W 1087; Orvis v. Elliott, 147 Mo. 231; Essey v. Bushakra, 304 Mo. 231, 263 S.W. 406; State ex rel. v. Lamb, 174 Mo.App. 360; In re Sanford Fork & Tool Co., 160 U.S. 247, 40 L.Ed. 414; Gracey v. St. Louis, 221 Mo. 1; State ex rel. Knisely v. Board of Trustees, 268 Mo. 163, 186 S.W. 680. (2) Respondent is without jurisdiction to entertain defendant's motions seeking to vacate the judgment, because: (a) The judgment against Swinney has by affirmance become the judgment of this court and cannot be vacated by the lower court. 1 Freeman on Judgments (5 Ed.) 399. (b) Defendant's motions were collateral attacks upon the judgment and mandate of this court. Gary Realty Co. v. Swinney, 297 S.W. 43; State ex rel. Knisely v. Board of Trustees, 268 Mo. 163. (c) The questions presented by defendant's motions are res judicata, having already been decided in relator's favor by this court in banc in Gary Realty Co. v. Swinney, 306 Mo. 592; Gary Realty Co. v. Swinney, 297 S.W. 43; Padgett v. Smith, 205 Mo. 122; Gracey v. St. Louis, 221 Mo. 1. (3) The order overruling defendant's motion to set aside the order striking defendant's motion to vacate a final judgment, twice affirmed by this court, is not appealable, for that: (a) "In the absence of an express statute, no appeal lies from the ruling of courts on motions." State v. Goldstein, 209 Mo.App. 102; Lowe v. Frede, 258 Mo. 210; State ex rel. v. McElhinney, 241 Mo. 608. (b) The right of appeal must be authorized by sec. 1469, R. S. 1919, and this section does not authorize the allowance of an appeal from an order of the character in question here. If it be contended that this order is "a special order after final judgment in the cause," from which an appeal is authorized under Section 1469, such contention has been expressly denied by this court on the ground that said provision of the statute refers only to orders "ancillary to an existing judgment" and not determinable by such judgment, such as orders taxing costs, allowing attornevs' fees, etc. Bussiere's Admr. v. Sayman, 257 Mo. 303. (4) Respondent is threatening to act in excess of his jurisdiction. The appropriate remedy is therefore by prohibition. State ex rel. v. Williams, 310 Mo. 267; State ex rel. v. Jones, 274 Mo. 374. (5) Respondent's allowance of an appeal to defendant would not afford relator a complete or adequate remedy by reason of the fact that the judgment for relator has been twice affirmed by this court on prior appeals in the same case and the same issues thereby finally determined, because relator would thereby be subjected to further delay on a useless third appeal. State ex rel. v. Jones, supra. (6) Even though another remedy would be available to relator by reason of respondent's appeal or writ of error, prohibition will nevertheless lie since such remedy is inadequate and incomplete. State ex rel. v. Jones, supra; State ex rel. v. Woods, 292 S.W. 1033; Scarritt Estate Co. v. Johnson, 303 Mo. 664; State ex rel. v. Miller, 289 S.W. 898; State ex rel. v. Dearing 291 Mo. 169.

Frank M. Lowe, Kenneth McC. DeWeese and Henry L. Jost for respondent.

(1) Prohibition is not the remedy. (a) Prohibition is not a writ of right. Sec. 2057, R. S. 1919; State ex rel. Fabrico v. Johnson, 293 Mo. 302; State v. Mo. Workmen's Comp. Com., 8 S.W.2d 897; State ex rel. v. Harty, 276 Mo. 583. (b) Prohibition cannot be made to usurp the functions of an appeal. Wand v. Ryan, 166 Mo. 646; State ex rel. v. Wurdemann, 309 Mo. 120. (2) Respondent obeyed the mandate of this court. (3) Respondent had the sole original jurisdiction to entertain the motion in the nature of a writ of audita querela to vacate the judgment. (a) Kelly v. Kelly, 290 S.W. 628; Fisher v. Johnson, 74 Mo.App. 64; State ex rel. Fabrico v. Johnson, 293 Mo. 302; Jeude v. Sims, 258 Mo. 26; Reed v. Bright, 232 Mo. 399; Illinois Glass Co. v. Ingraham, 215 Mo.App. 12; 6 C. J. 853-854; 2 R. C. L. 1159. (a) Appellate courts do not assume jurisdiction of such writ. Lumber Co. v. Lead Co., 222 S.W. 398. (b) Even if judgment had been before an appellate court, the lower court can entertain the motion. State ex rel. Phelan v. Engelmann, 86 Mo. 551; Leggett v. Humphreys, 62 U.S. 66. (4) Respondent's refusal to reinstate defendant's motion in the nature of a writ of audita querela to vacate the judgment, was appealable. (a) It was the duty of the court to have heard the motion instead of striking same from the files. Franciscus v. Martin, 9 Mo. 197; Dower v. Conrad, 207 Mo.App. 176; Cross v. Gould, 131 Mo.App. 585. (b) Striking the motion from the files was in effect overruling the motion. Seibert v. Harden, 8 S.W.2d 905. (c) The motion is appealable. Metal Workers v. Mercantile Co., 218 Mo.App. 544; Scott v. Crider, 217 Mo.App. 1; Suess v. Motz, 220 Mo.App. 32; Sims v. Thompson, 291 Mo. 493; Stutz v. Lentin, 220 Mo.App. 840; State ex rel. v. Riley, 219 Mo. 667; Sec. 1469, R. S. 1919; Wehrs v. Sullivan, 187 S.W. 825; State ex rel. v. Homer, 150 Mo.App. 325; Audsley v. Hall, 303 Mo. 451.

OPINION

Gentry, J.

This is an original proceeding, the object of which is to prohibit Honorable Willard P. Hall, Judge of the Jackson County Circuit Court, at Independence, from allowing an appeal from his order refusing to set aside his previous order striking from the files a motion filed by defendant to vacate a judgment and make an order restraining the clerk from issuing an execution. The judgment referred to was rendered by the circuit court (over which respondent presides) on July 18, 1921, in the case of Gary Realty Company v. E.F. Swinney. An appeal from that judgment to this court resulted in an affirmance of the judgment on February 17, 1925 (Gary Realty Co. v. Swinney, 306 Mo. 592). The judgment not having been satisfied, an execution was issued, when defendant filed a motion to quash the same; but the motion to quash was overruled. Defendant then appealed from the order overruling said motion, and this court affirmed the action of the trial court therein, on June 27, 1927 (Gary Realty Co. v. Swinney, 317 Mo. 687, 297 S.W. 43). Afterwards, on August 3, 1927, defendant filed in the trial court what he termed a "motion to vacate judgment and quash execution if issued." This motion was by the trial court stricken from the files. Whereupon, defendant filed what he termed a "motion to set aside the order striking defendant's motion to vacate judgment and quash execution if issued from the files." This motion was overruled by the trial court; and from its overruling defendant filed an affidavit for appeal. Thereupon, an application was made to this court to prohibit Judge Hall from granting defendant an appeal.

In the petition, relator in appropriate language recites the history of this case and its parent case, referring to the opinions, the mandates of this court and the effort of the defendant to again bring an appeal to this court on matters included in the former suit. Prayer is then made that the respondent be prohibited "from hearing, considering, allowing or passing upon said application for an appeal and further prohibiting and restraining him from entertaining, hearing, considering, passing upon or deciding any further proceedings, motions, applications or other pleadings or matters in said cause, except only to carry into effect, and force and execute the aforesaid mandate and judgment of this court therein." Attached to the petition are exhibits, being certified copies of the pleadings and record therein referred to.

Counsel for respondent, who are also counsel for E. F. Swinney (in whose behalf the motion was made before respondent), have made for respondent, with his approval, a return, in which much of the history of this litigation is set forth. The return then states:

"Your respondent states that under the law and decisions of this honorable court, defendant E.F. Swinney had the right to file his motion to vacate the judgment rendered against him; that relator, plaintiff therein, resisted said motion on the ground, among others, that the motion was groundless and frivolous as it had the right to do, and your respondent states that he had the power and authority to hear, try and determine said motion to vacate said judgment and did exercise said power and authority on the 1st day of November 1927, by sustaining relator's motion to strike defendant's motion to vacate from the files (Ex. D). That thereafter on November 4, 1927, defendant files its motion to set aside order striking defendant's motion to vacate judgment and quash execution (if issued) from the files (Exhibit E, page 47), and relator appearing at the hearing of such motion on December 17, 1927, said motion overruled (Exhibit F, page 49) and thereupon defendant filed its motion and affidavit for appeal (Exhibit G, page 49). . . .

"Your respondent states that he is the judge of the Circuit Court of Jackson County, Missouri, sitting at Independence, before whom the motion to vacate the judgment in Cause No. 37863 was pending; that your respondent had authority to hear, try and determine said motion; that your respondent had all the parties thereto before him and had jurisdiction of both the...