State ex rel. Hermann v. Green

• Citation: 76 S.W.2d 432,230 Mo.App. 805
• Parties: STATE OF MISSOURI, AT THE RELATION OF ARTHUR C. HERMANN, DOING BUSINESS AS MOUND CITY PROVISION COMPANY, RELATOR, v. HONORABLE JAMES F. GREEN, JUDGE OF THE EIGHTH JUDICIAL CIRCUIT OF MISSOURI, RESPONDENT
• Decision Date: 04 December 1934
• Court: Court of Appeal of Missouri (US)

76 S.W.2d 432

230 Mo.App. 805

STATE OF MISSOURI, AT THE RELATION OF ARTHUR C. HERMANN, DOING BUSINESS AS MOUND CITY PROVISION COMPANY, RELATOR, v. HONORABLE JAMES F. GREEN, JUDGE OF THE EIGHTH JUDICIAL CIRCUIT OF MISSOURI, RESPONDENT

Court of Appeals of Missouri, St. Louis

December 4, 1934

Original Proceedings in prohibition.

PRELIMINARY RULE IN PROHIBITION MADE PERMANENT.

Dunbar & Dubail and Bryan Wilson for relator.

(1) A frivolous pleading may be stricken out on motion of the adverse party. Secs. 784, 785, R. S. Mo. 1929. (2) Questions which go to the merits of the case below cannot be considered. State ex rel. Gavin v. Muench, 225 Mo 210, 124 S.W. 1124, l. c. 1129. (3) Matters of jurisdiction only are considered on an application for writ of prohibition. State ex rel. Brady v. Evans, 184 Mo 632, 83 S.W. 447, l. c. 449. (4) The pendency of a case in the appellate court suspends all further exercise of judicial functions in the case by the court below. Macklin v. Allenberg, 100 Mo. 337, 13 S.W. 350; State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Niedringhaus v. Wm. F. Niedringhaus Inv. Co., 54 S.W.2d 79, l. c. 81. (5) Action on the motion to assess damages upon the dissolution of the injunction must be deferred until the case is disposed of in the appellate court. Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267; J. & W. Railway Co. v. Railroad Co., 135 Mo. 554, 37 S.W. 540; Morrison v. Hess, 231 S.W. 997. (6) A supersedeas bond is not required to suspend action on the motion to assess damages. Cohn v. Lehman, supra; State ex rel. Patton v. Gates, supra; Niedringhaus v. Niedringhaus Inv. Co., supra; Macklin v. Allenberg, supra. (7) The effect of the pendency on appeal or on writ of error is the same. Macklin v. Allenberg, supra; Moberly v. Lotter, 266 Mo. 457, 181 S.W. 991; Thornbrug v. Hall, 263 S.W. 146.

Leon M. Feigenbaum, Robert L. Aronson and Edward Hupert for respondent.

Facts adduced from the record, to show that no jurisdictional questions are involved or that prohibition will not lie because the questions are moot, should always be considered on an application for writ of prohibition. State ex rel. Winkelman v. Westhues, 269 S.W. 379; State ex rel. Lemp v. Wurdeman, 311 Mo. 64. Prohibition will not lie to prohibit a chancellor from proceeding with special orders, necessary to a conclusion of his equitable jurisdiction, and made mandatory by statute, as these orders are not judicial in character, but in the nature of an inquiry, ancillary to a final decree. Secs. 1507, 1509, R. S. Mo. 1929; Crossland v. Admire, 118 Mo. 87, 24 S.W. 154; Willow Springs v. Creamery, 197 S.W. 916; Brissieres, Admr., v. Sayman, 165 S.W. 796, l. c. 799, 800; State ex rel. Terminal v. Tracy, 237 Mo. 109. (1) The right of a court of equity to hear the motion for assessment of damages, on an injunction bond, is not suspended or stayed by application for writ of error, made without supersedeas. Fears v. Riley, 48 S.W. 828. (2) A writ of error is unlike an appeal from the merits of the cause. It is not a continuation of the pending litigation and, therefore, stays no proceedings. It is a new suit, specially authorized by statute (not by common law); goes only to the record proper, and is a collateral attack on a final judgment. Macklin v. Allenberg, 13 S.W. 350; City of St. Louis v. Butler, 99 S.W. 1092; In re Louis, 213 S.W. 146; Avaro v. Wells, 211 S.W. 712; Evans v. Dockins, 40 S.W.2d 508. (3) A motion to assess damages is not the exercise of a judicial function. It is in the nature of a special order after judgment, and merely a step incidental in its enforcement, or in its execution. It is not the trial of an issue of law or fact, and merely an inquiry. Crossland v. Admire, 24 S.W. 154; Konta v. Stock Exchange, 131 S.W. 380, 381; Brissieres, Admr., c. Sayman, 165 S.W. 796; Joplin State Bank v. Heaton, 180 S.W. 19. (4) A chancellor retains jurisdiction, in spite of appeal, over the subject-matter of the judgment, for the purpose of entering of any special orders, looking to the rights of the parties, which have been properly brought before him within the term. These are not stayed by appeal, but their final conclusions are in themselves appealable independently. Witthaus v. Bank, 18 Mo.App. 181; State ex rel. v. Dearing, 79 S.W. 454; Brissieres, Admr., v. Sayman, 165 S.W. 796, l. c. 799, 800; Willow Springs v. Mount Creamery, 197 S.W. 916. (5) The relator's plea in abatement, before the HON. JAMES F. GREEN, was a request for special relief, submitting the questions to him involved in the motion to assess damages; it required the relator to comply with the conditions imposed upon him by that court, incidental to such relief; which was a privilege of the court to grant. 21 C. J. 849; Willow Springs v. Mount Creamery, 197 S.W. 916.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

This is an original proceeding in prohibition which comes on to be heard following the issuance of our preliminary rule directed to respondent, HON. JAMES F. GREEN, one of the judges of the Circuit Court of the City of St. Louis, and issued at the relation of Arthur C. Hermann, doing business as Mound City Provision Company, who was the plaintiff in an injunction suit brought in the circuit court and assigned to the division over which respondent now presides.

Briefly stated, the point at issue in this proceeding is whether respondent has the power and jurisdiction to hear and determine a motion to assess damages on the injunction bond, the temporary injunction having been dissolved, pending the determination of the case proper which is now awaiting review in this court on writ of error sued out by relator as the plaintiff in error therein.

It appears that the purpose of the injunction suit was to have the defendants restrained from the prosecution of an action for rent and possession which they had instituted against relator in a justice's court in the city of St. Louis. A temporary restraining order was issued as prayed upon the execution by relator of an injunction bond conditioned as required by statute (Sec. 1507, R. S. 1929; Mo. St. Ann., sec. 1507, p. 1663). The suit was thereafter heard on its merits, resulting, among other things, in the entry of a decree dissolving the temporary injunction and denying injunctive relief to relator.

Following the entry of final judgment, and within the same term, the defendants filed their motion to assess damages on the injunction bond. No appeal was taken by relator, but for various reasons action on the motion was deferred from time to time until a writ of error was sued out of this court by relator, but without supersedeas being given. Return to such writ of error has been made, but the same appears now to be pending undisposed of on the motion of the plaintiff in error, the relator herein, to fix the amount of the supersedeas bond.

Immediately upon the issuance of the writ of error out of this court relator filed with respondent his motion or plea in abatement as against defendants' pending motion to assess damages on the injunction bond, directing respondent's attention to the fact of the issuance of the writ of error, and praying that action upon defendants' said motion be stayed until the determination of the writ of error, upon the ground that respondent was without power and jurisdiction to entertain such motion for a hearing while the writ of error was pending.

Upon the submission of relator's motion to stay, respondent entered an order that the motion to assess damages would be stayed provided relator would, within ten days, file a bond in the penal sum of $ 2,000, and conditioned that he would pay all damages that might be sustained by the defendants pending the hearing of the writ of error in this court. Such order was not complied with by relator, whereupon respondent overruled his motion to stay proceedings on defendants' motion to assess damages, and set the latter motion down for a hearing.

It was at this stage of the controversy that relator filed his petition for prohibition in this court and obtained the issuance of our preliminary rule; and now issue has been joined upon respondent's demurrer to the petition, such other matters as have been incorporated in the return and the reply thereto being extraneous to the decisive question in the case, which is whether respondent has jurisdiction to hear the motion to assess damages on the injunction bond pending the review on writ of error in this court of the decree dissolving the temporary injunction, and with no supersedeas having been given.

Upon broad legal principles it would seem clearly to appear that further proceedings before respondent should be suspended until such time as the propriety of the dissolution of the injunction may be determined by this court. This for the very obvious reason that any right which the defendants may have for the allowance of damages on the bond is entirely contingent upon there being a final decree standing in their favor in the cause in which the bond was given; and while such a decree was indeed rendered, yet its operation as a final determination of the rights of the parties became at once suspended upon the issuance of the writ of error out of this court. In other words, it cannot now be said that the defendants will ever be entitled to the allowance of damages, for it is entirely possible that as a result of our review of the case the decree of the court may be reversed, the order dissolving the injunction be set aside, and a permanent injunction be granted, in which event there would be no breach of the condition of the bond, and any assessment of damages previously made be rendered entirely nugatory. Of course we do not say that any such eventuality will...