State ex rel. Lucas v. St. Louis Court of Appeals

• Decision Date: 31 October 1885
• Citation: 87 Mo. 374
• Parties: THE STATE ex rel. LUCAS et al. v. THE ST. LOUIS COURT OF APPEALS.
• Court: Missouri Supreme Court

87 Mo. 374

THE STATE ex rel. LUCAS et al.

v.THE ST. LOUIS COURT OF APPEALS.

Supreme Court of Missouri.

October Term, 1885.

Mandamus.

WRIT DENIED.

W. H. Clopton for relator.

(1) The statute does not require such motions to be in writing. R. S., sec. 736. (2) The motion for judgment is not filed for the purpose of reviewing the proceedings of the circuit court in rendering judgment against the B. & D. Bank in favor of Kohn, and is different in every essential part from a motion for a new trial. (3) The evidence having been preserved by bill of exceptions, and thus made part of the record, and an exception having been saved to the order for execution, and the order (judgment) having been thus made part of the record, there is enough before the court for a review of the finding of the circuit court. (4) It has been the uniform practice of the profession, in preserving exceptions to the proceedings under this motion, to treat it as an independent proceeding. (5) This is a proceeding by motion; it differs from a proceeding by petition.

H. I. D'Arcy and J. P. Maginn for respondent.

(1) The motion not being in the bill of exceptions, there is nothing before this court for review. United States v. Gamble, 10 Mo. 457: Christy v. Myers, 21 Mo. 112; Hannibal v. Railroad Co., 37 Mo. 338; Corby v. Tracy, 62 Mo. 512; Jefferson City v. Opel, 67 Mo. 395; McCarthy v. McGinnis, 76 Mo. 344; Insurance Co. v. Hill, 12 Mo. App. 148; Ober v. Railroad Co., 13 Mo. App. 84; Bank v. Fletcher, Mo. App. No. 2902; Statev. Gee, 79 Mo. 313. And a motion against a stockholder is just as much a motion as any other motion. Webber v. Humphreys, 5 Dillon, 322. (2) If the case were to be reviewed the judgment should be affirmed; as, whether the distributees of the Lucas estate have title to the stock or not, the defendants having tried to work a fraud on the statute by preventing the passing of the title, are estopped to claim that they did not succeed in retaining it. Lowell on Transfer of Stock, 88; 1 Lindley on Partnership, 128 (top) Ed. Ewell; Taylor v. Taylor, L. R. 10 Eq. 477; Bowden v. Johnson, 107 U. S. 261; Thompson on Stockholders, p. 150, sec. 129. (3) The defendant is liable, even if there was distribution; and that, too, for the whole amount. The policy of the statute does not require a creditor to proceed against each of several co-owners of stock for his fractional proportion as shown by private agreement among themselves. 1 R. S., sec. 737; Insurance Co. v. Hill, 12 Mo. App. 148; Bray v. Seligman, 75 Mo. 31.

BLACK, J.

Kohn recovered judgment against a corporation. After execution returned nulla bona, he filed his motion for execution against the relators, Lucas & Johnson, owners of unpaid stock. From the judgment awarding an execution against them, they appealed. The court of appeals affirmed the judgment on the ground that the motion was not preserved in the bill of exceptions, though contained in the transcript.

Mandamus is the appropriate remedy to set the machinery of the courts to which it is addressed, in motion, but it will not direct the performance of any particular judicial act. The subordinate tribunal will be left free to give its best judgment. The scope and province of the writ is to prevent a failure of justice from delay or refusal to act, when addressed to a court acting judicially. State ex rel. Adamson v. Lafayette County Court, 41 Mo. 222; Trainer, etc., v. Porter et al., 45 Mo. 338. Nor will it lie to correct the errors of inferior tribunals by annulling what they have done erroneously. Dunklin Co. v. District Court, 23 Mo. 453; 1 Den. 644; 20 Wend. 658; 10 Pick. 244.

Still, the contention is that the court of appeals refused to go into the merits of the case depending before it, because of an erroneous view of a matter of practice preliminary to the consideration of the cause, and that in such cases mandamus will lie. One of the cases cited in support of relators' position, is that of State ex rel. Huey v. Cape Girardeau Court of Common Pleas, 73 Mo. 560. There the court ordered the cause “dropped from the docket.” That was a refusal to proceed to final judgment, and the writ was awarded on the general principles before stated. The same may be said of Cowan v. Fulton, J., 23...