State ex rel. George v. Mitchell

• Decision Date: 08 May 1950
• Docket Number: No. 6942,6942
• Citation: 230 S.W.2d 116
• Parties: STATE ex rel. GEORGE v. MITCHELL et al.
• Court: Missouri Court of Appeals

Page 116

230 S.W.2d 116

STATE ex rel. GEORGE v.MITCHELL et al.

No. 6942.

Springfield Court of Appeals, Missouri.

May 8, 1950.

Bradshaw & Fields, John F. Low, Jean Paul Bradshaw, Lebanon, for relator.

John M. Bragg, Ava, M. J. Huffman, Hartville, for respondent.

VANDEVENTER, Presiding Judge.

This is an action in Prohibition.Relator petitions this court to prohibitHon. Willis H. Mitchell, magistrate and Hon. Tom.R. Moore, Judge of the Circuit court of Douglas County from proceeding further with a temporary injuction issued in a divorce case.We issued our preliminary rule to show cause why a final judgment in prohibition should not be entered.

The facts are as follows: Linnie George sued her husband, Walter E. George for a divorce.In the petition as a separate paragraph, but not as a separate count, is the following: '2.Plaintiff further states that the defendant has possession of certain personal property within the State of Missouri consisting of a team of horses, two brood sows and three pigs, seven milk cows, three of which have calves by their sides, one shorthorned bull, one roan heifer, one steer, one spotted heifer, one jersey heifer, one jersey bull calf born in August, 1949, one yearling heifer calf, a portable saw, a Rite-Way Milking machine, a 1936 Ford coach automobile, 64 grown chickens, one wagon, turning plow and small plows, one set of harness, five milk goats, household and kitchen furniture located in the house on the farm where defendant is now residing, and one large lot of canned fruit.Plaintiff further states that all of the foregoing property has been acquired by and through the joint efforts of plaintiff and defendant during their married life together.Plaintiff further states that unless the defendant is restrained from selling or disposing of said personal property, said property will be sold or disposed of for the purpose of fraudulently depriving plaintiff of her rights therein as the wife of defendant.'

The circuit judge being absent from the county, Magistrate Mitchell made the following order:

Order Allowing Temporary Writ of Injunction.

'Upon reading the petition of the plaintiff, it appearing that plaintiff, upon the facts stated in said petition, is entitled to the relief prayed for, it is hereby ordered by the Judge of the Magistrate Court of Douglas County, Missouri, that a temporary injunction be granted herein enjoining the defendant from selling or otherwise disposing of any of the following described personal property, to-wit: a team of horses, two brood sows and three pigs, seven milk cows, three of which have calves by their sides, one short-horned bull, one roan heifer, one steer, one spotted heifer, one jersey heifer, one jersey bull calf born in August, 1949, one yearling heifer calf, a portable saw, a Rite-Way milking machine, a 1936 Ford coach automobile, 64 grown chickens, one wagon, turning plow and small plows, one set of harness, five milk goats, household and kitchen furniture located in the house on the farm where defendant is now residing, and one large lot of canned fruit, until the further order of the Circuit Court of Douglas County, Missouri.This being a matter between husband and wife and being an ad interim order, no bond is required.It is further found by this Magistrate that the Circuit Judge is not within Douglas County and Circuit Court is not in session in said County.

'Dated this 27th day of February, 1950.'

No bond was given as required by Sec. 1671, Mo.R.S.A. Relator seeks to prohibit further action on the injunction and asserts, among other things, that (a)the court exceeded its jurisdiction in issuing the temporary injunction without requiring such bond and (b)the court had no jurisdiction in a divorce case to restrain the husband from disposing of his personal property.

Respondents, in their return to our preliminary writ, admit the filing of the divorce petition with the above quoted paragraph, admit the magistrate made the order alleged but assert such action was lawful and within his jurisdiction.

There can be no question but that a magistrate may lawfully issue a temporary injunction, under proper circumstances, in the absence of the circuit judge from the county.Constitution of Mo.1945, Art. V, Sec. 20, Mo.R.S.A.;Laws ofMo.1945, P. 647, Mo.R.S.A. Sec. 1661;Laws ofMo.1945, P. 771, Sec. 11, Mo.R.S.A. Sec. 2811.111.

First as to the bond.Section 1671, Mo.R.S.A. provides that no injunction, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the state in its own behalf, until the plaintiff or some responsible person for him shall execute a bond with proper sureties to secure the payment of such damages as defendant may suffer, should the injunction be dissolved.A very interesting and learned discussion of the history of this statute is contained in City of St. Louis v. St. Louis Gaslight Co., 82 Mo. 349, to which we refer the curious.The law is well settled in this state that a temporary injunction issued without the bond being given is void and that the court that issues it is acting in excess of its jurisdiction.

Ex parte Dillon, Mo.App., 96 S.W.2d 1095;State ex rel. American Bankers' Assur. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924;State ex rel. Jiner v. Foard, 251 Mo. 51, 157 S.W. 619;State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665;C. H. Albers Comm. Co. v. Spencer, 236 Mo. 608, 139 S.W. 321, Ann.Cas.1912D, 705;State ex rel. Missouri Pac. Ry. Co. v. Williams, 221 Mo. 227, 120 S.W. 740;State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876;State ex rel. St. Ferdinand etc. v. McElhinney, 330 Mo. 1063, 52 S.W.2d 400, 83 A.L.R. 202;Losee v. Crawford, 222 Mo.App. 683, 5 S.W.2d 105;Aetna Insurance Co. of Hartford, Conn. v. Security Printing Co., Mo.App., 196 S.W. 93.

It will be noted that in the order the magistrate said: 'This being a matter between husband and wife and being an ad interim order no bond is required.'

The idea of an 'ad interim' order must have been derived from State ex rel. American Bankers' Assurance Co. v. McQuillin, Judge, 260 Mo. 164, 168 S.W. 924, where the court(we think obiter dictum) discussed a hypothetical set of facts where a valid ad interim order might have been issued.But the court there held that a temporary injunction had in fact been issued without bond and was therefore in excess of the chancellor's jurisdiction and void.

In State ex rel. Jiner v. Foard, 251 Mo. 51, 157 S.W. 619, 621, Judge Graves, in discussing a like situation, said: 'The statute(now Sec. 1671) is not to be evaded or frittered away by calling that which is an injunction by any other name.'

In this case, Judge Graves speaking for the Supreme Court also said: 'If an injunction bond was a condition precedent to the granting of the restraining order made by Judge Foard in the case pending nisi, then the entering of that order was beyond the lawful jurisdiction of that court, and the writ of prohibition lies.In State ex rel. v. Williams, 221 Mo. loc. cit. 266, 120 S.W. 751, upon this exact question, this court said: 'In view of the reason of the statute exacting a bond as a condition precedent to the granting of an injunction, we are of the opinion that the requirement of it goes to the very jurisdiction of the court, and that an injunction under the statute, without requiring the bond and its execution and approval before the issuing of the injunction, is and would be in excess of the jurisdiction of the circuit court; that, notwithstanding its general equity powers, the statute must control and be held to modify and regulate its jurisdiction, and when the consequences to a defendant are considered the statute is a wise and salutary one, and should be enforced.On this point our opinion is that the respondent, in issuing his restraining order and refusing to discontinue, set aside, or annul it, exceeded his jurisdiction, and should be prohibited from further maintaining said temporary injunction and ordered to set aside the same.''

Presiding Judge Reynolds, speaking for the St. Louis Court of Appeals in Akin v. Rice, 137 Mo.App. 147, 117 S.W. 655, loc. cit. 659, under a similar situation said: 'The second proposition turns entirely upon an effort to draw a distinction between a 'temporary restraining order' and a 'temporary injunction.'This is a contention over names more than over substance.* * * The authority of the courts of this state to issue injunction is coupled with the obligation to exact a bond.The statute is not to be evaded or frittered away by calling that which is an injunction by any other name.The restraining order in this case was of force against all of the defendants until it was dissolved and a further injunction refused on hearing of the motion to make it of force until final hearing.Who can doubt that a disregard of it would have subjected those against whom it was leveled, and who were bound by it, to punishment for contempt, exactly as absolutely as if it had been termed a 'temporary injunction'?It would have been treated exactly as any other injunction.We decline to follow the refinements of the very able, industrious, and learned counsel for the appellant in their attempt to draw a distinction between such a temporary restraining order and an injunction.'

In Aetna Insurance Co. of Hartford Conn. v. Security Printing Co., Mo.App., 196 S.W. 93, 95, the Chancellor issued what he called a 'stay order'.But it was held it was in fact a temporary injunction.'What it is called, is immaterial.'

Our view is that merely because the magistrate called the temporary injunction in one place, an 'ad interim order' to explain why a bond was not necessary or required, in no way changed the order he had made and that it was still a temporary injunction.He exceeded his jurisdiction in issuing it without requiring a bond and the circuit court in proceeding further in regard to it would do...