State ex rel. Hanks v. Seehorn

• Decision Date: 19 December 1932
• Citation: 55 S.W.2d 714,227 Mo.App. 666
• Parties: STATE EX REL. THOMAS E. HANKS, RELATOR, v. THOMAS J. SEEHORN, JUDGE, RESPONDENT
• Court: Kansas Court of Appeals

55 S.W.2d 714

227 Mo.App. 666

STATE EX REL. THOMAS E. HANKS, RELATOR, v. THOMAS J. SEEHORN, JUDGE, RESPONDENT

Court of Appeals of Missouri, Kansas City

December 19, 1932

Original proceedings by State at the relation of Thomas E Hanks against Hon. Thomas J. Seehorn, Judge of Division No. 3 of Jackson County Circuit Court and of the Assignment Division of said court for writ of prohibition.

Writ made permanent.

Sebree Jost & Sebree and Mord M. Bogie for relator.

Judy & Whittelsey for respondent.

CAMPBELL C. Boyer, C., concurs.

OPINION

CAMPBELL, C.

Relator brought this proceeding in this court to obtain writ of prohibition against Hon. Thomas J. Seehorn, one of the judges of the circuit court of Jackson county, to restrain and prohibit him from further proceeding in a matter pending in the court over which he presides, wherein Maude E. Carlisle and Charles D. Carlisle seek to redeem land in Jackson county which had been sold upon the foreclosure of a deed of trust. A preliminary rule was made upon the respondent to show cause why a final judgment in prohibition should not be entered against him. To this order the respondent has made return. Relator has filed motion for judgment on the pleadings. The motion, as a matter of law, concedes all the facts stated in the return. An examination of the relator's petition and the respondent's return reveals that no material fact is in dispute. The facts are:

Maude E. Carlisle and her husband, Charles D. Carlisle, hereafter called mortgagors, executed a deed of trust in usual form which, by its terms, conveyed land in Jackson county to a trustee named therein to secure the payment of five promissory notes aggregating $ 5500 which were made payable to Summers Investment Company. The debt evidenced by the notes became due and remained unpaid. Thereupon the trustee, on September 15, 1932, after having advertised the property for sale, sold it to the relator, Thomas E. Hanks. The regularity of the sale is not questioned. At the sale the mortgagors gave due notice of intention to redeem the land. On October 4 or 5, it matters not which day, the mortgagors, after having given due notice thereof, filed petition or motion in the court over which respondent was presiding, together with a bond to redeem. The bond was signed by mortgagors and Carlisle Investment Company, a corporation organized under the law of Missouri relating to manufacturing and business corporations. On October 14 the mortgagors "offered additional security upon said bond, and filed a declaration of trust, signed by Charles D. Carlisle, Jr." The by-laws of the Carlisle Investment Company "were changed for the purpose of making this bond." The respondent heard evidence and "ruled that Maude E. Carlisle and Charles D. Carlisle had the right to redeem." The proceeding was continued from time to time until on November 5, at which time the bond, first presented on October 4 or 5, "again was signed by Carlisle Investment Company." Upon the signing of the bond on November 5 respondent announced that he would continue the cause for ten days in order to enable the relator "to ask for writ of prohibition." The return pleads that respondent has jurisdiction to hear the matter so brought into his court by the mortgagors and has power and jurisdiction to approve the bond presented by them, and prays that relator's petition be dismissed.

The allegations quoted herein appear in the return.

The Carlisle Investment Company was organized in 1910. Its charter power "is to buy, sell, own, and mortgage real estate, deal in real estate securities, erect buildings, own, lease, mortgage, sell, manage and operate public or private amusement parks, all for pecuniary profit and gain."

It is stated in relator's brief that the investment company on November 1 amended its articles of incorporation, attempting thereby to obtain power enabling it to become surety on the bond, but no such fact is pleaded in the return. The return says it amended its by-laws for that purpose. It is not alleged whether the amendment was made by its directors or by its stockholders, but regardless of that question a by-law would be ineffective to confer upon the corporation power which it did not possess by virtue of the terms of its charter. The law forbid it to become a...