State ex rel. Maple v. Mulloy

• Decision Date: 09 March 1929
• Citation: 15 S.W.2d 809,322 Mo. 281
• Parties: The State ex rel. Charles A Maple, Tom D. Ford, Murphy Door Bed Company, H. W. Felter, Benjamin F. Orr, Ella Orr and Mildred O. Beaton, Partners, Under Firm Name of Sterling Flooring Company, LaSalle Iron Works, Thomas C. Bryant, City Coal Company, Edwin C. Adam, Big Bend Quarry Company, Carr-Trombley Manufacturing Company, Huttig Sash & Door Company, Wiles-Chipman Lumber Company, Adolph Sigoloff and Jacob Sigoloff, Partners, Under Firm Name of Sigoloff Brothers, B. O. Graham, Fred B. Schmidt and Daniel Hogan, To Use of L. M. Smith, Relators, v. Jerry Mulloy, Judge of Circuit Court of St. Louis County, and Henry C. Kirchner, Receiver, Respondents
• Court: Missouri Supreme Court

15 S.W.2d 809

322 Mo. 281

The State ex rel. Charles A Maple, Tom D. Ford, Murphy Door Bed Company, H. W. Felter, Benjamin F. Orr, Ella Orr and Mildred O. Beaton, Partners, Under Firm Name of Sterling Flooring Company, LaSalle Iron Works, Thomas C. Bryant, City Coal Company, Edwin C. Adam, Big Bend Quarry Company, Carr-Trombley Manufacturing Company, Huttig Sash & Door Company, Wiles-Chipman Lumber Company, Adolph Sigoloff and Jacob Sigoloff, Partners, Under Firm Name of Sigoloff Brothers, B. O. Graham, Fred B. Schmidt and Daniel Hogan, To Use of L. M. Smith, Relators, v. Jerry Mulloy, Judge of Circuit Court of St. Louis County, and Henry C. Kirchner, Receiver, Respondents

Supreme Court of Missouri

March 9, 1929

Preliminary rule made absolute.

Edward C. Crow and Jones, Hocker, Sullivan & Angert for relators.

(1) The judgment of July 11, 1927, was a final judgment in the cause of Hogan v. Steele Construction Company, with all the incidents that the expression implies. R. S. 1919, sec. 1521; State ex rel. v. Klein, 140 Mo. 510; Doe Run Lead Co. v. Maynard, 283 Mo. 672. The fact that the receiver was directed to pay the expenses of his administration out of funds in his hands, and to surrender possession of the premises to the purchaser at the Sheriff's execution sale, does not at all militate against this view. These provisions are quite common to all receivership cases and are necessary to close the accounts of the receiver. For that purpose the jurisdiction of the court continued, but for that alone. The rights of the parties litigant were fixed by the decree, as well as the method of their enforcement (i. e., by sale under execution). Winthrop Iron Co. v. Meeker, 109 U.S. 193; Lewisburg Bank v. Sheffey, 140 U.S. 452; Keystone Iron Co. v. Martin, 132 U.S. 97. (2) And if the decree of July 11, 1927, was indeed a final judgment then the power of the court ended with the term at which the judgment was pronounced, and there was no jurisdiction to modify it thereafter either as to the rights of the parties litigant as to the disposition of the proceeds of the sale or by the substitution of a sale by the receiver for a sale under execution by the sheriff. Lindell v. Bank, 4 Mo. 228; Ashby v. Glasgow, 7 Mo. 320; State ex rel. v. Fort, 178 Mo. 519; Jeude v. Sims, 258 Mo. 39. (3) The writ of prohibition will issue not only where a court is proceeding without jurisdiction, but where although possessed of jurisdiction, it is proceeding in excess of its powers. State ex rel. v. Scarritt, 128 Mo. 338; St. Louis Ry. Co. v. Wear, 135 Mo. 230; State ex rel. v. Elkin, 130 Mo. 90; State ex rel. v. Wurdeman, 309 Mo. 408; State ex rel. v. Williams, 310 Mo. 267; Peters v. Buckner, 288 Mo. 618; State ex rel. v. Latshaw, 291 Mo. 592; State ex rel. v. Hughes, 294 Mo. 1. The only process of execution of a judgment in a mechanic's lien proceeding by the original statute was a special fieri facias to the sheriff. R. S. 1919, sec. 7231. In the equitable action provided for by the Act of 1911 (R. S. 1919, sec. 7244) the provision is for a sale by the sheriff (as of yore) or by a special commissioner appointed to make the sale. In the original decree the court might have (as it did) directed a special execution to be issued to the sheriff, or have appointed a commissioner and ordered him to sell the property. Having selected one of these alternative methods of execution provided by the statute and closed the book of the term, the judge of the circuit court could not subsequently set aside that final judgment and direct a sale in a manner different from that prescribed by the statute as well as by the original judgment. Having adjudged that the costs of the receivership should be paid out of the funds in the hands of the receiver, the court could not, after the term, lay them as a prior lien upon the property.

Wurdeman, Stevens & Hoester and John H. Haley for respondent.

(1) This lien suit was instituted under the provisions of Sections 7240, 7241, 7242, 7243, 7244, 7245, 7246 and 7247, R. S. 1919; such sections having been enacted in 1911 (long subsequent to the other sections of the same chapter) and obviously the cases decided prior to 1911, before the enactment of these sections, could not be regarded as judicial interpretation of these sections, hence, in view of the plain provisions of the law to the contrary, it would be but superrogation to discuss the fallacy of the conclusion that special execution, as provided by Section 7231, R. S. 1919, is now the exclusive method of sale and that any other method prescribed by the court would be the exercise of excessive jurisdiction warranting the issuance of the writ of prohibition against the court. Section 7231, cited and relied upon by relator, was a part of the original chapter on mechanic's liens and applies only to actions wherein a single lien is in issue and is not applicable to actions under the "equity sections" enacted long thereafter, and the "equity sections" are not applicable in actions wherein there is but a single lien in issue, as section 7242 provides that "this equitable action shall not apply to instances where there is only one mechanic's lien claimed against the property." (2) The court had jurisdiction of the subject-matter, and Mr. Smith's appearance, requesting and securing a continuance, his appearance later and his participation in the hearing on the application certainly gave the court jurisdiction of his person, and, having had his day in court and the matter having been decided against his contention and contrary to his wishes, and Section 1469, R. S. 1919, giving him the right of appeal therefrom, it is elementary law that the writ of prohibition may not be substituted for appeal. The res of the action is still in custodia legis, and of course under the jurisdiction of the court. The liens, interest and court costs, or any part thereof, have not been satisfied, nor has the property been sold under the judgment, and the property is still in the possession of the receiver. Ex parte Haley, 99 Mo. 150; Colburn v. Yantis, 176 Mo. 670; Baisley v. Baisley, 113 Mo. 544; Peters v. Railroad Co., 59 Mo. 406. And relator having submitted himself to the jurisdiction of the court cannot substitute this proceeding for appeal. State ex rel. v. Stobie, 194 Mo. 45. (3) While the essential judicatory part of a decree may not be changed by a court after the term when it was rendered, those parts which are directory as to its mode of execution may be. It is always within the province of a court of equity to modify the terms of a decree so as justly and equitably to enforce its judgment and render to the parties that to which they are entitled.

Atwood, P. J. All concur, except Frank, J., not sitting.

OPINION

ATWOOD

This is a proceeding to prohibit respondents from executing an order made by respondent Mulloy, as Judge of the Circuit Court of St. Louis County, directing a sale of certain real estate in the case of Hogan Steele Construction Company et al. Upon the filing and presentation of relators' petition we issued our preliminary rule thereon which was served and to which respondents have made return. Thereupon relators filed motion to quash respondents' return and make the preliminary rule absolute.

From the uncontroverted allegations of relators' petition it appears that on July 24, 1924, Daniel Hogan brought an action in St. Louis County against J. M. Steele Construction Company and others to enforce an alleged mechanic's lien on certain premises in the County of St. Louis consisting of seven two-story brick flat and garage buildings, sheds fences, sidewalks, appurtenances and improvements situated on certain described lots. Various persons, corporations and unknown parties were made defendants to the action as lien claimants and claimants under deeds of trust. On July 26, 1926, Henry C. Kirchner, the other respondent herein, was by order of said circuit court appointed receiver of said property and was directed to take possession and collect the rents thereof. There were orders of publication in some instances and personal service in others. Answers, cross-bills and intervening petitions were filed, and defaults were entered as to those defendants who failed to appear. Replies were filed and the cause put at issue. The trial extended through several days of the January term, 1927, and the cause was continued to the May term, 1927. On July 11, 1927, at the May term of said court, a decree, in the caption and body of which respondent Henry C. Kirchner, Receiver for J. M. Steele Company, a corporation, is named as a party defendant, was entered, which after finding this to be an equitable lien suit and determining and defining the rights, liens and priorities of the parties litigant, directed the receiver to "remain in charge of the property herein described, manage, control, conserve and preserve same in its present condition to the end that said property be protected for the rightful recipients of the proceeds thereof until such time as said mechanics' liens, interest and court costs are fully satisfied and discharged, or until said property is sold under the judgment rendered herein; and, in that event, said receiver shall turn over the possession of said property to the purchaser at such sale under such execution and file his final report and the receiver is discharged thereon." Said judgment and decree further provided "that the receiver pay out of the funds now in his hands, first, the necessary expenses of said receivership, including allowance to the receiver on account of his services heretofore rendered, his attorneys' fees and other expenses incurred by said receiver in the preservation of said property, and the court costs incurred in this case, and the balance, if any, to be held...