State ex rel. Gavin v. Muench

• Decision Date: 02 February 1910
• Parties: THE STATE ex rel. STEPHEN J. GAVIN v. HUGO MUENCH, Judge, and ROBERT R. HUTCHINSON and MARY H. ANDERSON
• Court: Missouri Supreme Court

124 S.W. 1124

225 Mo. 210

THE STATE ex rel. STEPHEN J. GAVIN v. HUGO MUENCH, Judge, and ROBERT R. HUTCHINSON and MARY H. ANDERSON

Supreme Court of Missouri

February 2, 1910

Peremptory writ granted.

Fordyce Holliday & White for relator.

(1) The application for this writ was timely and the case should be considered on its merits. State ex rel. v. Rombauer, 105 Mo. 105; State ex rel. v. Elkin, 130 Mo. 90; Barnes v. Gottschalk, 3 Mo.App. 115; Olive v Snider, 176 Mo. 63. (2) The rule should be made absolute, as the circuit court of the city of St. Louis was without jurisdiction to try the case: for (a) The case was one whereby the title to real estate, situated entirely without the city of St. Louis and in the county of St. Louis may be affected. R. S. 1899, sec. 564; Castleman v. Castleman, 184 Mo. 432; State ex rel. v. Dearing, 180 Mo. 53; Baker v. Squire, 143 Mo. 92; Peters v. Worth, 164 Mo. 431. (b) The respondents, who were plaintiffs below, are seeking to charge relator's real estate with an easement. Baker v. Squire, 143 Mo. 92; Monroe v. Crawford, 163 Mo. 178; Peters v. Worth, 164 Mo. 431; Tarkio v. Clark, 186 Mo. 285. (c) The relator is without adequate remedy other than the writ of prohibition. State ex rel. v. Dillon, 96 Mo. 56.

C. R. Skinker for respondents.

(1) The preliminary rule should be discharged because: (a) Appeal furnishes an adequate remedy in this case, and where such is true the writ will not issue. Mastin v. Sloan, 98 Mo. 252; State ex rel. v. Scarritt, 128 Mo. 331; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Zachritz, 166 Mo. 307; State ex rel. v. Stobie, 194 Mo. 48; State ex rel. v. Hirzel, 137 Mo. 435; Mining Co. v. Fremont, 7 Cal. 132; Hicks v. Michael, 15 Cal. 109; Bliss v. Superior Ct., 62 Cal. 544. Nor is inadequacy by appeal demonstrated by the case of State ex rel. v. Dillon, 96 Mo. 56. (b) If relator correctly construes that case to the effect that appeal on bond would not suspend the removal of the fence and tracks required to be done by the decrees in causes 51,038 and 51,039, then those decrees cannot be prohibited, because they are completed matters. (c) Since the jurisdiction of the trial court depended upon facts to be found and law applied thereto, it is for the trial to determine the jurisdiction, and error in so doing can be corrected on appeal or by writ of error. Mastin v. Sloan, 98 Mo. 252; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Moehlenkamp, 133 Mo. 134. (d) The writ should be denied because of relator's failure to make timely application for the writ, to the great expense and trouble of respondents, in the discretionary power of the court to issue such writ. State ex rel. v. Stobie, 194 Mo. 50. (2) On a proper construction of sec. 564, R. S. 1899, the trial court was not without jurisdiction in the original causes. R. S. 1899, sec. 564; Stats. 1835, p. 506, sec. 2; Stats. 1855, p. 1221, sec. 3, art. 4, chap. 128; Railroad v. Mahoney, 42 Mo. 467; Gregg v. Railroad, 48 Mo.App. 494; State ex rel. v. Dearing, 180 Mo. 56; Castleman v. Castleman, 184 Mo. 432; Nichols v. Voorhis, 74 N.Y. 29; Wheeler v. Schofield, 67 N.Y. 311; Norris v. Nesbit, 123 N.Y. 650; Klingelhoefer v. Smith, 171 Mo. 463. The decrees in causes 51,038 and 51,039 do not directly affect the title to the land in the roads. Such is necessary to bring the case within section 564. State ex rel. v. Dearing, 180 Mo. 63; Heman v. Wade, 141 Mo. 598; Price v. Blankenship, 144 Mo. 209; Edwards v. Railroad, 148 Mo. 513. The original causes were equitable suits in personam which should be brought in the county where the defendant resides, and, when jurisdiction of his person was acquired, jurisdiction of the subject-matter followed. State ex rel. v. Dearing, 180 Mo. 63; State ex rel. v. Zachritz, 166 Mo. 313; Olney v. Eaton, 66 Mo. 363; Castleman v. Castleman, 184 Mo. 438.

WOODSON, J. Graves, J., concurs in result.

OPINION

In Banc

Prohibition.

WOODSON J.

At the suggestion of relator, made in his petition filed herein, on July 23, 1909, one of the judges of this court issued a preliminary rule to respondents, requiring them to show cause why a writ of prohibition should not issue herein made returnable October 12, 1909.

The facts, as appear from the petition and the return made thereto, are substantially as follows:

Hugo Muench, one of the respondents, at all the times herein mentioned, was one of the judges of the circuit court of the city of St. Louis, and the other respondents, as well as the relator, were residents of said city. On December 6, 1907, respondent Robert R. Hutchinson filed in the circuit court of said city his petition for an injunction against relator as defendant, claiming relief in the matters hereinafter stated; and on the same day said Hutchinson, as curator of respondent Mary H. Anderson, filed her petition also against relator as defendant in said court, praying for same relief. The relator filed a demurrer in each of said causes, raising the question of the jurisdiction of said court over the subject-matter of each of said suits. On February 18, 1908, by agreement of parties, said causes were, by order of court, consolidated, Mary H. Anderson in the meantime having reached the age of majority. The petitions in said causes were identical in substance and they will, for that reason, hereinafter be referred to as one case.

The petition of plaintiffs (respondents here) in said cause stated that Robert R. Hutchinson and Mary H. Anderson were the owners of lots numbered 8, 9, 10 and 11 in Hutchinson's subdivision, lying entirely within the county of St. Louis, in the State of Missouri; that on June 21, 1870, one E. C. Hutchinson, from whom respondents claim title to their property, had duly executed and acknowledged a plat of said Hutchinson's subdivision which said plat was recorded with the Recorder of Deeds of said county of St. Louis; that the relator, Stephen J. Gavin, was the owner by purchase, on June 19, 1905, of lots 5 and 6 of said Hutchinson's Subdivision, lying in the county of St. Louis; that upon said plat, as filed by said E. C. Hutchinson, a street sixty feet broad and designated as Barnes Avenue, lying between the property owned by the respondents and the property of the relator, was dedicated as a public road forever; and that a street fifty feet wide, running from said platted Barnes Avenue in a northerly direction to the northernmost limits of said subdivision, along the east line of relator's lot number 5, was dedicated as a public road forever. Respondents' petitions further state: "That said Barnes Avenue and said street fifty feet wide, extending north and south between said lots 4 and 5, have not heretofore been opened by any order of the county court of said St. Louis county, nor a plat made thereof and filed with the clerk of said county court, nor have said roads or either of them been used as public highways by the traveling public for a period of ten consecutive years next prior to the filing of this petition, nor has there been any public money or labor expended upon said roads or either of them for said period of ten consecutive years." And respondents' said petitions further state "that the said Gavin (meaning the relator herein) has denied that said Barnes Avenue has ever been accepted by the said county court as a public road, and that said Barnes Avenue has ever been used by the public as a public road at any time since its dedication as aforesaid; and that said county court has declined to assume jurisdiction of said Barnes Avenue as a public road."

"Relator further states to the court that said petition of respondents thereupon proceeded to set up that the relator had erected upon that portion of Barnes Avenue, lying next to his lots Nos. 5 and 6 and within the middle line of said Barnes Avenue, a certain railroad embankment and switch track and a certain fence, and that said relator had suffered to remain upon the middle line of said street fifty feet wide a certain fence; that by reason of said fence and embankment respondents were deprived of their easement of ingress and egress upon and over said Barnes Avenue and said street fifty feet wide lying next to the lots of the relator within the middle line of said streets: Wherefore, the respondents asked for damages and that said embankment and fences shall be removed," and that he be permanently enjoined from replacing or maintaining them in said streets, etc.

"Relator states that under the Constitution and laws of the State of Missouri, and more particularly by section 564 of the Revised Statutes 1899, it is provided that suits for the possession of real estate, or whereby the title thereto may be affected shall be brought within the county within which such real estate, or some part thereof, is situated; that by the allegations of respondents' petitions filed herein, all of the real estate mentioned in said petitions as belonging to respondents and relator, was situated in the county of St Louis, State of Missouri, and without the limits of the city of St. Louis, but that said suits, and both of them, were brought in the circuit court of the city of St. Louis as aforesaid and were then pending before Judge Hugo Muench, respondent herein, as aforesaid; that from the allegations of said petitions, and both of them, it appears that said streets had been abandoned by reason of their non-user by the public for the period of ten consecutive years preceding the filing of said petitions, as will more particularly appear from sections 9472 and 9694 of the Revised Statutes 1899, and that, therefore, the title to said streets, and each of them, had vested up to the middle line of said streets in the owners of the abutting property; that your...