State ex rel. Heddens v. Rusk
| Decision Date | 03 July 1911 |
| Citation | 139 S.W. 199,236 Mo. 201 |
| Parties | THE STATE ex rel. J. W. HEDDENS et al. v. W. D. RUSK, Judge |
| Court | Missouri Supreme Court |
Writ issued.
Ben J Woodson for relators.
(1) Respondent had no jurisdiction to make the orders and this case is on all fours with the case of State ex rel. v Muench, 217 Mo. 124. (2) In its more general sense, the term jurisdiction when applied to a court is the power residing in such court to determine judicially a given action, controversy, or question presented to it for decision. If this power does not exist with reference to any particular case, its determination by the court is an absolute nullity. Bingham v. Henrici, 16 A. 618; Bassick Co. v. Schoolfield, 10 Colo. 46; State v. Stanton, 6 Wall. 50; Luther v. Burden, 7 How. 1; Fletcher v. Tuttle, 150 Ill. 41; Kerfoot v People, 51 Ill.App. 409; Dicey v. Reed, 78 Ill 206; U. S. v. Arredondo, 6 Pet. 709; People v. Liscomb, 60 N.Y. 559; Reynolds v. Stockton, 140 U.S. 254; Munday v. Vail, 34 N. J. L. 418; Jacobson v. Miller, 41 Mich. 90; Cromwell v. Sac. Co., 94 U.S. 351; Hope v. Blair, 105 Mo. 93; State ex rel. v. Muench, 217 Mo. 124. The issue made by the pleadings was fully and finally determined in January, 1908. None of the parties was ever properly or legally in court after the entry of the decree in said cases. After the final decree, the defendants were all out of court and could be brought in only by original process or a personal waiver of process. Every order made by the circuit court after the final decree was without jurisdiction over either the subject-matter of the suit or the parties, and was absolutely null and void. (3) The writ of prohibition is available to keep a court within the limits of its lawful power in a given case, no less than to prevent its cognizance of causes not committed by law to its jurisdiction. State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Elkin, 130 Mo. 90; Railroad v. Weal, 135 Mo. 230; State ex rel. v. Wood, 155 Mo. 425.
C. A. Mosman for respondent.
(1) Relators no where in their application give the slightest intimation of the application made by the trustees to the trial court for power to borrow money for the purposes of the trust. They only say that all orders made by the court "were made in compliance with said petition filed in said case except the following," (reciting order to which they object). How could an order authorizing the trustees to borrow $ 25,000 and mortgage the trust fund be made on a petition "praying to change the name . . . and for that purpose only and none other?" Respondent himself feels somewhat mystified by such a presentation of the petition. (2) Relators by their petition apparently strive to frame a case squarely within State ex rel. v. Muench, 217 Mo. 124. But the actual facts when known show them entitled to the same decision as in State ex rel. v. Muench, 130 S.W. 282, at the hands of this court. (3) The petition of the relators, filed Feb. 25, 1908, was a perfectly proper petition for trustees of a trust fund devoted to a charitable use, to present to the lower court, as a court of equity. They showed the impossibility of carrying out the testator's wishes, on the lines he had laid down, with the funds at their command, and under the new laws regulating medical schools and hospitals, and that the trust must fail unless the court empower them to borrow money and mortgage the property. Lackland v. Walker, 151 Mo. 242. The petition was not a mere notice to the parties that an application would be made for an order in a case theretofore on the docket of the court, but a formal petition reciting affirmatively every essential fact and praying for relief approximate to the facts stated. To that petition all the defendants entered their appearance in proper form, and there is no plea of any want of authority. Indeed it is the petitioners in that petition -- the movents -- who here complain. They certainly were in court. This order of the court was strictly within the prayer for general relief contained in the petition. As this was a trust devoted to a charitable use, not a private trust created for heirs and distributees, as in the McManus case (217 Mo. 124), and the Ponath case (130 S.W. 282), the public was interested that it should not fail; and as the court had authorized a proceeding that might endanger a trust devoted to a public use, the court was bound to see to it that the trust was not imperiled by the proceedings of the trustees pursuant to the powers it had granted to them. In borrowing the money and mortgaging the property to secure the payment, the trustees were acting by virtue of the powers granted to them by the court, and not by force of any power vested in them by the will of Samuel Ensworth. The court was not bound and constrained to grant them the precise relief prayed -- no more, and no less. It had the right to grant the relief upon such terms and conditions as the court might deem proper to impose. Wodward v. Mastin, 106 Mo. 362; Lackland v. Walker, 151 Mo. 279. The condition or terms on which the relief was granted were perfectly germane to the relief prayed.
OPINIONIn Banc
PROHIBITION.
Prohibition. To a preliminary rule to show cause entered here on December 27, 1910, Judge Mosman made return showing, among other things, that his term of office as judge expired after the writ issued and before its return day. Thereupon his sucessor, Judge Rusk, entered his appearance as substituted respondent and adopted his return. Thereupon the cause was submitted on a motion for judgment on the pleadings.
In brief the case is this:
In June, 1886, Samuel Ensworth executed his last will and testament, he then owning a considerable estate and making certain bequests and devises. Clause five thereof reads:
The devisees named in that clause are also made executors without bond in a subsequent clause and, as executors, were donees of a power of sale. His will was proved in the probate court of Andrew county in August of that year, and subsequently was solemnly probated in a suit, in which the issue was devisavit vel non, in the circuit court.
In 1905 an ex parte petition was filed by proper parties in the Buchanan Circuit Court for a pro forma decree to incorporate "The Ensworth-Central Medical College and Hospital" for 100 years, to effectuate the purposes set forth in the 5th clause of Mr. Ensworth's will. Thereby the plan was to have its affairs and property taken over and managed by seven named trustees or directors and their successors, and when organized and chartered the trustees were to take over the funds provided by and arising from said clause five and to use the same in purchasing grounds, erecting and thereafter furnishing, equipping and maintaining a medical college and hospital at St. Joseph to provide for the education of students in the science and practice of medicine and surgery and science pertaining to all branches and departments of medicine, conferring degrees upon them on graduation, to provide for the maintenance and support of said hospital, and for making suitable regulations and by-laws for both through said directors and trustees. All moneys arising from the college and hospital after paying expenses (including a reasonable compensation to the trustees "for their kind of service" and repairs and improvements and for the welfare of the college and hospital) were to be devoted to the growth and usefulness of said college and hospital.
On that petition in due time a pro forma decree was entered in accord with the prayer of the petition and thereafter a charter was issued by the Secretary of State as by statute provided.
In May, 1908, in the said circuit court such application was made and steps were taken on the ex parte application of certain officers and trustees of the corporation as resulted in changing the name of "The Ensworth-Central College and Hospital" by pretermitting the word "Central," and as made its corporate name and style "The Ensworth College and Hospital," -- this to comply with the request of Mr. Ensworth in said clause five of his will, wherein he selected that name for the college and hospital.
Prior to that, in February, 1908, in the said circuit court, the trustees and directors named in the articles of association and the pro forma decree of incorporation, brought suit against Stephen C. Woodson, and Maggie Woodson, his wife, R. A. Heddens, W. I. Heddens, Mattie Smith, Ollie F. Clark, Mae Heddens, Vernon Heddens and Herbert S. Hadley, Attorney-General for the State of Missouri.
We infer this was a friendly suit, since the adult defendants waived service of process by...
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