State ex rel. Jiner v. Foard

• Decision Date: 02 June 1913
• Citation: 157 S.W. 619,251 Mo. 51
• Parties: THE STATE ex rel. LIZZIE JINER v. J. P. FOARD, Judge of Butler Circuit Court, and LONDON JINER
• Court: Missouri Supreme Court

157 S.W. 619

251 Mo. 51

THE STATE ex rel. LIZZIE JINER v. J. P. FOARD, Judge of Butler Circuit Court, and LONDON JINER

Supreme Court of Missouri

June 2, 1913

Writ denied.

Ernest A. Green and D. B. Deem for relator.

(1) The writ of prohibition lies to prevent an excessive or unauthorized application of judicial power, and also to prohibit a court from assuming judicial power not granted by law. State ex rel. v. Williams, 221 Mo. 227. (2) The suit instituted by London Jiner v. Lizzie Jiner is under Secs. 2401, 2402 and 2403, R.S. 1909, and the prayer of plaintiff is for a temporary restraining order. (3) Injunctions cannot be changed by calling them restraining orders or other names, and a bond is a condition necessary (before final judgment) to give courts jurisdiction to make such orders. Circuit courts have no such power. Aken v Rice, 137 Mo.App. 147. (4) This restraining order was not on final hearing, case being still undetermined. (5) Sec 2522, R.S. 1909, 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 have executed a bond. (6) No bond was taken or required before the restraining order was made. (7) In all cases heretofore determined in the appellate courts, a bond was filed for temporary injunction or restraining order. 13 Mo.App. 36. The court had no jurisdiction to make a restraining order without bond, for the reason that a bond is a peremptory condition required by statute. Sec. 2522, R.S. 1909; State ex rel v. Williams, 221 Mo. 227; Aken v. Rice, 137 Mo.App. 147.

L. M Henson for respondents.

An occupying claimant, who is an unsuccessful defendant in an ejectment suit and who has made improvements in good faith, has a vested right in the premises in controversy, and entitled to hold possession thereof until compensated for improvements made, where suit is brought during the same term of court at which the judgment in ejectment was rendered and before eviction. Allen v. Mansfield, 82 Mo. 688; Malone v. Stretch, 69 Mo. 25; Devine v. Charles, 71 Mo.App. 210; Marlow v. Liter, 87 Mo.App. 584; Pool v. Slicer, 129 Mo.App. 364; Russell v. Defrance, 39 Mo. 506. The order of the court, staying execution and enjoining plaintiff in the ejectment suit from taking possession of the property, was simply an amendment to the judgment in ejectment, before the term at which the same was rendered had lapsed, and any order or judgment rendered by the court at the same term can be modified, or set aside without the exercise of excessive jurisdiction. Equity demanded that such order be made by the court. Devine v. Charles, 71 Mo.App. 213; Malone v. Stretch, 69 Mo. 26; Webster v. Steward, 6 Iowa, 401; Claussen v. Rayburn, 14 Iowa 136. Prohibition is intended to prevent, and will not lie to set aside judicial orders already made. 32 Cyc. 603; Klingelhoefer v. Smith, 171 Mo. 455; State ex rel. v. Burckhartt, 87 Mo. 533.

OPINION

In Banc.

Prohibition.

GRAVES J.

Original proceeding in prohibition. The facts of the case must be gathered from the returns, as the case proceeds here upon the pleadings, without evidence. Judge Foard of the Butler Circuit Court, one of the respondents, makes returns as follows:

"Now comes J. P. Foard, one of the respondents herein, and for his return to the writ of prohibition issued in this case, respectfully says:

"That he is now, and was at the time mentioned in said writ, the duly acting and qualified judge of circuit court of Butler county, Missouri.

"That on the 14th day of February, 1913, in the circuit court of Butler county, Missouri, and at the January term of said court, decree was entered in favor of Lizzie Jiner, relator herein, against London Jiner, respondent herein, in an ejectment suit involving the real property in relator's petition herein described, and that London Jiner was the defendant in said ejectment suit and in possession of the property.

"That on February 20, 1913, and during the same term of the Butler Circuit Court, said London Jiner filed a suit against Lizzie Jiner to recover the value of improvements made by him in good faith, believing he was the owner of said property, and in his petition in said cause asked that defendant be enjoined from taking possession of said premises until this action could be heard and determined.

"That on March 3, 1913, this respondent made an order in the circuit court of Butler county, Missouri, enjoining said Lizzie Jiner from obtaining writ of restitution for the possession of said premises until the termination of suit for the value of improvements on said property.

"That on March 3, 1913, and after the last above described order was made, said Lizzie Jiner filed a motion to rescind said order, and that said motion was overruled by this respondent on the 7th day of March, 1913.

"Respondent further states that the Butler Circuit Court was adjourned to court in course, and that thereafter on the day of March, 1913, this respondent was served with notice that relator would apply to this court for writ of prohibition herein.

"Respondent says that he is willing now and at all times to obey whatever orders this honorable court may see proper to make in the premises; and avers that he issued the restraining orders as he believed he had a right to do, under the laws of this State, and having fully made return respectfully prays to be hereof discharged."

The order or judgment of March 3, 1913, referred to in the return is as follows:

"Now at this time it appears to the court, that in an ejectment proceeding heard and determined in this court on February 14, 1913, in which Lizzie Jiner was plaintiff, and London Jiner was defendant, said Lizzie Jiner obtained judgment against said London Jiner for the possession of lot 8 in block 12 of Clevlen & Foley's subdivision of the northeast quarter of the southeast quarter of section 34, township 25 north, range 6 east, in Butler county, Missouri, which judgment was and is unappealed from; and it appears that afterward, to-wit, on the 20th day of February, 1913, and at the same term of this court, said London Jiner instituted this suit, which appears to be an action for improvements made in good faith believing he was the legal owner of the aforesaid premises, and praying among other things that said Lizzie Jiner, the defendant in this action, be enjoined from taking possession of said premises by virtue of the aforesaid judgment until the final termination of this suit.

"And it appearing that the plaintiff, London Jiner, upon the facts stated in the petition is entitled to the relief prayed for, it is ordered that defendant herein be enjoined from obtaining writ of restitution, and that the defendant, her agents and servants be enjoined from taking possession of the above described lands until the final hearing of this cause or the further order of this court."

Respondent London Jiner filed a motion to dismiss the relator's petition for writ of prohibition, assigning therein several grounds or reasons therefor, which if necessary will be noted later. Under the facts stated in the return should a writ of prohibition go, is the question with which we are vexed.

I. We have not set out the petition of London Jiner, the unsuccessful defendant in ejectment, but it will be sufficient to say that the said London at least attempted to bring an action under sections 2401 and 2402, Revised Statutes 1909. These sections become material in the discussion of the case, and we will quote them. Section 2401 reads:

"Sec. 2401. If a judgment or decree of dispossession shall be given in an action for the recovery of possession of premises, or in any real action in favor of a person having a better title thereto, against a person in the possession, held by himself or by his tenant, of any lands, tenements or hereditaments, such person may recover, in a court of competent jurisdiction, compensation for all improvements made by him in good faith on such lands, tenements or hereditaments, prior to his having had notice of such adverse title."

Section 2402 reads:

"Sec. 2402: The plaintiff in his petition shall set forth the nature of his title, the length of his possession and the kind and value of the improvements made; and shall also aver therein that he entered into the possession of the land, believing that he had good title thereto, and that he made the improvements specified in the petition in good faith, under the belief that he had good title to the land, and shall be verified by his affidavit thereto annexed."

We have held that when the defendant in ejectment does not claim title from or through the plaintiff, then his action for improvements must be and is an independent action. That in such case the value of the improvements cannot be adjudicated in the ejectment suit proper, but must be adjudicated in an action under the statute. [Tice v. Fleming, 173 Mo. 56 et seq.; Bristol v. Thompson, 204 Mo. 366, 102 S.W. 991; Mann v. Doerr, 222 Mo. 19.]

London Jiner, the unsuccessful defendant in the ejectment suit, has proceeded under the statute and his rights in this action now before us must be measured by the statute. Not only so, but the action of the circuit judge, his co-respondent in the pending case, must likewise be gauged by those statutes. Pertinent to the case is another section of the chapter pertaining to ejectment. It is section 2403, Revised Sttautes 1909, and immediately succeeds the sections we have quoted, supra. The language of this section is:

"Sec. 2403. An injunction may be granted to stay the plaintiff from taking possession of the land until the value of the improvements is ascertained, or until...