State ex rel. Kurn v. Wright
| Citation | 164 S.W.2d 300 |
| Decision Date | 31 July 1942 |
| Docket Number | No. 37298.,37298. |
| Parties | STATE OF MISSOURI at the relation of JAMES M. KURN and JOHN G. LONSDALE, Trustees of the St. Louis-San Francisco Railway Company, Relators, v. EMORY H. WRIGHT, Judge of Division No. 1 of the Circuit Court of Jackson County, and JOHN F. COOK, Judge of Division No. 2 of the Circuit Court of Jackson County. |
| Court | United States State Supreme Court of Missouri |
(1) The preliminary rule in this cause should be made absolute, and relators' motion to make preliminary rule absolute should be sustained by reason of the fact that the plaintiffs below have failed to comply with the order of this court, wherein they were required to deposit the sum of Two Hundred ($200) Dollars with the clerk of this court to defray the expense of the referee, the necessity for whose appointment was occasioned by the failure of counsel for respondents and plaintiffs below, to keep their agreement to stipulate as to facts in issue, said facts being based upon matters entirely of record. (2) Respondents are without jurisdiction of the cases now pending before them and involved in this suit. (a) Under the terms and provisions of the bankruptcy laws of the United States, and Sections 44 and 77 of the Act of Congress of the United States of July 1, 1898, and entitled "An Act to Establish a Uniform System of Bankruptcy Throughout the United States" as amended, plaintiffs below had no right to file or maintain the cases herein involved, and respondents were without jurisdiction of said cases, because no order was ever made or entered, or permission granted by the United States Court for the Eastern Division of the Eastern District of Missouri, permitting the filing of said suits, and said suits were filed and were being prosecuted without the consent or permission of said United States District Court, and said suits are not of the kind or class which are permitted to be maintained without the permission and consent of the United States Courts against trustees appointed under said bankruptcy law of the United States, together with amendments thereto. Sections 77 (a), 77 (c) and 77 (j), Act of Congress of United States of July 1, 1898, entitled "An Act to Establish Uniform System of Bankruptcy Throughout the United States," as amended; Haag v. Ward, 89 Mo. App. 186; Kirk v. Kane, 87 Mo. App. 274; Smith v. St. Louis-San Francisco Ry. Co., 151 Mo. 391; Barton v. Barbour, 104 U.S. 126; Ex parte Baldwin, 291 U.S. 610. (b) Because the petitions of the plaintiffs in the cases below, disclose upon their faces that said plaintiffs have not stated, and cannot state, any cause of action against these relators of which respondents would have jurisdiction, by reason of the fact that Section 4588, Revised Statutes of Missouri (now Section 5064, Revised Statutes of Missouri, 1939) is applicable only to corporations, and is not applicable to relators as trustees of a railroad corporation appointed by a United States Court under the terms and provisions of Section 77, Chapter 8, of the Acts of the Congress of the United States, relating to bankruptcy, and under the Act of Congress of the United States of July 1, 1898, entitled "An Act to Establish a Uniform System of Bankruptcy throughout the United States" as amended. Sec. 4588, R.S. 1929, now Sec. 5064, R.S. 1939; Lyons v. St. Joseph Belt Ry. Co., 84 S.W. (2d) 933; Soule v. St. Joseph Ry., L., H. & P. Co., 220 Mo. App. 497, 274 S.W. 517; Lynch v. M., K. & T. Ry. Co., 333 Mo. 89, 61 S.W. (2d) 918; Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W. (2d) 920; Sec. 4997, R.S. 1939; Memphis & C. & R. Co. v. Hoechner, 67 Fed. 456; North Kansas City Bridge & Ry. Co. v. Leness, 82 Fed. (2d) 9; Kansas City Term. Ry. Co. v. Central Union Trust Co., 294 Fed. 32; Colburn v. Yantis, 176 Mo. 670; Smith v. St. Louis-S.F. Ry. Co., 151 Mo. 391; State ex rel. v. Truman, 4 S.W. (2d) 433; Board of Directors St. Francis Levee Dis. v. Kurn, 91 Fed. (2d) 118; Ex parte Baldwin, 291 U.S. 610; Cheek v. Prudential Ins. Co., 192 S.W. 387; Cheek v. Prudential Ins. Co., 209 S.W. 928; Cheek v. Prudential Ins. Co., 223 S.W. 754; Prudential Ins. Co. v. Cheek, 259 U.S. 530; Lynch v. M.-K.-T. Ry. Co., 61 S.W. (2d) 918. (c) Because Section 4588, Revised Statutes of Missouri, 1929 (now Section 5064, Revised Statutes of Missouri, 1939) is a penal statute and applies solely to corporations, and not individuals or trustees appointed by a United States Court under the bankruptcy laws of the United States, and because said Section 4588 did not require relators to give to any of the plaintiffs below such a letter as is referred to in said Section 4588, and the relators are not liable in damages unto any of the plaintiffs below by reason of any alleged violation of said statute. (3) Prohibition will lie, where the petition reveals on its face or from the indisputed and undisputed facts, it is clear that the plaintiff has not stated, and cannot state, a cause of action. In the case at bar it appears upon the face of the petitions filed by the various plaintiffs, from the undisputed evidence heard by the referee and from the report of the referee, to which no exception was taken, that the plaintiffs below have not and cannot state a cause of action against relators for any alleged violation of Section 4588, Revised Statutes of Missouri, 1929. State ex rel. Johnson v. Sevier, 98 S.W. (2d) 677; State ex rel. Natl. Refining Co. v. Seehorn, 127 S.W. (2d) 418.
Allan R. Browne and David Logsdon for respondents.
Original proceeding to prohibit respondent judges from proceeding further in a series of eight damage suits pending in the Circuit Court of Jackson County wherein relators have been sued for actual and punitive damages for their alleged wrongful refusal to give service letters to the several plaintiffs in said causes upon their discharge, as required by what is now Section 5064, R.S. '39, as amended, Laws 1941, p. 330 [Mo. R.S.A., sec. 5064.]
The petitions, pleadings and record proper in each of said cases are identical, except for the names of the parties plaintiff, the dates relating to employment and discharge, and rates of pay. The same attorneys represent all of the plaintiffs, and all of said suits were filed on the same day.
Our provisional rule in prohibition issued, and respondents made return. Whereupon relators applied for the appointment of a referee to take testimony on certain limited issues of fact. Hon. Robert H. Moore of the Clay County Bar was so appointed. At the time of his appointment, relators were "ordered to deposit $200 and plaintiffs below ordered to deposit a like amount, with clerk of this court, to apply on costs." Relators complied, but the respondents moved that the order be modified so as to dispense with a deposit on their side, which motion was overruled. No deposit was ever made by respondents, or the plaintiffs below, in obedience to said order. Thereafter the referee heard the testimony, and reported his findings. The respondents appeared by counsel (the attorneys for plaintiffs in the suits below) at the hearings held before the referee, but they have filed no brief in this court.
Relators have moved that the provisional rule be made absolute because of the failure of the plaintiffs below to comply with the aforesaid order directing a deposit to be applied on the costs. Coupled with this is another ground arising out of facts which are not before us otherwise than as alleged in the motion. As such allegations do not prove themselves, we are not at liberty to inquire into the merits of the latter proposition.
[1] Our order directed to plaintiffs below was improvidently made. They are not parties, and cannot properly be joined, as such, in the instant proceeding, although interested in the result. [State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W. (2d) 835; State ex rel. Robertson v. Sevier, 345 Mo. 274, 132 S.W. (2d) 961; Houts, Mo. Pl. & Pr., sec. 1229.] In this connection, it may not be amiss to point out that relators would be in no better position if the order had gone against the respondent judges themselves, as parties, because of our holdings that in prohibition proceedings to restrain a judge moving in a judicial capacity, costs will...
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