State ex rel. Merriam v. Ross
| Decision Date | 01 December 1896 |
| Citation | 41 S.W. 1041,136 Mo. 259 |
| Parties | The State ex rel. Merriam v. Ross, Judge, et al |
| Court | Missouri Supreme Court |
Rule discharged.
Martin L. Clardy for relator.
The court should sustain the motion now pending for a writ directed to its marshal requiring him to seize the railroad in controversy and to turn it over to the receiver de jure and should also compel by attachment Louis Houck to deliver to such receiver the books, papers, etc., of the company. 2 Spelling's Extraordinary Relief, sec. 1762; Havemeyer v. Superior Court, 84 Cal. 327; State v. Court of Appeals, 97 Mo. 276; Thomas v. Mead, 36 Mo 246; Rickey v. Superior Court, 59 Cal. 661; High's Legal Remedies, p. 625, sec. 804; State v Hungerford, 8 Wis. 845; Lloyd on Prohibition, p. 67; State ex rel. v. Elkins, 130 Mo. 90; State ex rel. v. Rombauer, 105 Mo. 103. "Whenever a court acquires jurisdiction over property and holds it subject to judicial proceedings, it will not suffer its possession to be unlawfully disturbed or quietly submit to being deprived by unlawful means of its power to proceed, but will protect that jurisdiction by a summary process of attachment for contempt." Huntington v. McCann, 48 Conn. 199; Busch v. Mundy, 5 Madd. 184; Mead v. Merritt, 2 Paige, 402. This court has, in this proceeding, already determined the question as to the right of the circuit court of Iron county, through its legally appointed receiver, to the possession of the property in dispute. If the decision of this court constituted the full measure of remedial justice to which relator is entitled, and if this court, the highest in the state, has no power to effectually enforce its decisions and orders, then the administration of justice becomes a mockery. It is true that the general doctrine on the subject is a preventive, and not a remedial, proceeding but it is equally well settled by the authorities that, in a case where a superior court can properly take steps to prevent an inferior one from accomplishing a certain purpose it is also entirely proper that the superior court should at any stage of the proceeding not only prohibit the doing of acts in the future, but also cause to be canceled and annulled such acts as have already been done towards the accomplishment of the purpose which the superior court is endeavoring to prohibit. This is the rule announced in the case of State ex rel. v. Rombauer, 105 Mo. 103.
M. R. Smith and R. B. Oliver for respondents.
(1) At the time of the announcement of the decision of this honorable court in the prohibition case, there was no de jure receiver appointed by the Stoddard county circuit court, and no such receiver has since been appointed by such court to whom respondent, Louis Houck, could turn over said railway and its property, conceding that he had the power and was able to do so, notwithstanding his being the officer and under the control of the common pleas court. Weeks v. Smith, 3 Abb. Prac. 211; McKelsey v. Lewis, 3 Abb. (N. C.) 63; Ross v. Butler, 57 N.Y. 112; Buffen's case, 13 N.H. 14; Berry v. Innes, 35 Mich. 189; Haines v. Haines, 35 Mich. 143. (2) Eli Klotz's first appointment was vacated by the special circuit judge, elected to hold the regular March term of the Stoddard county circuit court, 1893, and his action was afterward affirmed twice by this court. State ex rel. v. Ross, 118 Mo. 42; State ex rel. v. Ross, 122 Mo. 453. (3) The original petition under which said appointment was made was adjudged insufficient on application to vacate for the reason that the facts set up in the petition did not warrant the appointment of a receiver, and for other reasons; this application was sustained in all things, as is shown by respondents' return herein. No appointment thereafter could be made under said petition, because estopped by a former adjudication. Gould v. Railroad, 91 U.S. 533; Bouchard v. Dias, 3 Denio, 244; Wells v. Moore, 49 Mo. 229; Wells on Res Adjudicata, sec. 446. "Where any fact has been directly in issue and judicially passed upon, it is res adjudicata, no matter what the nature of it, and can not be subsequently adjudicated." 21 Am. and Eng. Ency. of Law, p. 252, and citations to note 4; Gilstrap v. Felts, 50 Mo. 428. (4) Judge Wear made, or attempted to make, the second appointment of Klotz, July 24, 1893, without notice in the face of applications for changes of venue (which appear by the respondents' return), which he had undertaken to overrule March 13, 1893, and of which all parties had notice. The second appointment was void for two reasons: made without notice, and made without jurisdiction, because disqualified. State ex rel. v. Ross, 118 Mo. 48, dissenting opinion by Judge Sherwood; Barnes v. McMullins, 78 Mo. 286; Lacy v. Barnett, 75 Mo. 469; State v. Bulling, 105 Mo. 211; Scott County ex rel. v. Bacon, 107 Mo. 634; Neffzeiger v. Reed, 98 Mo. 87; Dowling v. Allen & Co., 88 Mo. 300. (5) Respondent Houck can not, we submit, turn over the possession of the railway and its property to the supposed receiver de jure, Eli Klotz, when it is not in his possession, but in the possession of the Cape Girardeau circuit court, and that without his asking and against his protest, as his return shows, nor can the marshal seize it out of the control of said circuit court, and turn it over to Eli Klotz, whose authority to receive it is clearly doubtful. Havemeyer v. Superior Court, 84 Cal. 389. Huntington v. McMahan, 48 Conn. 199. (6) The authorities are clear that upon a party instituting proceedings to foreclose a mortgage for the purpose of satisfying a debt, that upon a full tender of the same, such proceedings ought to be dismissed, and that it is not discretionary with the court whether they shall be dismissed or not, but the court may be compelled to dismiss them. This court ought to decline to proceed further in this proceeding on account of tenders. 2 Jones on Mortgages, sec. 1537; Railroad v. Sutter, 2 Wall. 510; Davis v. Marlborough, 168; Poynter v. Careed, 18 Jer. 417; Beach on Receivers, sec. 793. (7) Prohibition does not draw to it the merits of the cause over which jurisdiction is sought to be prohibited. High on Extraordinary Legal Remedies, sec. 768, p. 554; 19 Am. and Eng. Ency. of Law, Prohibition, p. 234; State v. Hall, 10 S. Rep. 196; Thompson v. Tracey, 60 N.Y. 35; People v. Seward, 7 Wend. 518. (8) There was nothing, therefore, prohibiting either Doyle or Houck individually appearing in another court of general jurisdiction other than the Cape Girardeau court of common pleas, and engaging in an ordinary proceeding, subject to whatever questions that the matter might give rise to be judicially disposed of in the different lower tribunals, and not elsewhere. This is the right of any citizen or person in the state, and is guaranteed to each by the constitution of the state and of the United States. (9) When Houck qualified as receiver in the Cape Girardeau circuit court he did so under an order that recognized and yielded to the authority of the supreme court of Missouri to declare the common pleas without jurisdiction, and which superimposed the authority of the circuit court upon the possession of the receiver under the common pleas court. It was an endeavor to save the property from loss from a sudden cessation of authority, and with no one authorized to receive it. Klotz, it had been decided, had no title under the original order appointing him, because this order had been revoked. State ex rel. v. Ross, supra.
R. B. Oliver for Leo Doyle, co-respondent.
(1) Respondent Doyle has strictly and literally obeyed the writ of prohibition issued by this court to the Cape Girardeau court of common pleas. Prohibition has but a restricted and limited office and can not be so enlarged as to bring within its scope incidental or collateral questions. See Thomson v. Tracy, 60 N.Y. 31; 2 Spelling on Extra Relief, pp 1369 and 1399; High's Extra Legal Remedies [2 Ed.], sec. 763. (2) This court in this proceeding can not go into a trial of the merits of the controversy in the Cape Girardeau county circuit court. Its jurisdiction is not questioned here. The only object that respondent has in setting forth in his return the proceedings had in said Cape Girardeau county circuit court was and is to show this court the reasons for bringing the suit, and that the circuit court has taken cognizance of the respondents' suit therein, and is proceeding to adjudicate the issues there presented. It is a court of competent jurisdiction, and has the right to determine all matters in that controversy. State v. Hall, 10 S. Rep. 196; Thomson v. Tracy, 60 N.Y. 31. (3) The order of Judge Wear on July 24, 1893, in the vacation of the Stoddard county circuit court, in attempting to appoint Klotz receiver, was and is illegal and void. Motions for change of venue had been filed, based on the prejudice of the judge against the defendants and the undue influence that was exerted by plaintiff, Merriam, over the judge, on the thirteenth of March, 1893. These motions were pending in the Stoddard county circuit court on the twenty-fourth of July, 1893. The judge of the circuit court knew of the existence of these motions. The counsel for relator knew of these motions. They attempted to destroy their legal effect on the thirteenth of March, 1893, and, therefore, had actual knowledge of their existence. While these motions were pending, neither the court nor the judge had the power to make an appointment of a receiver, or to do any act in that cause, except to act upon the motion for a change of venue. The jurisdiction of the judge was ousted. Lacy v. Barnett, 75 Mo. 469; Barnes v....
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