State ex rel. Merriam v. Ross

• Decision Date: 04 June 1894
• Parties: The State ex rel. Merriam, Petitioner, v. Ross, Judge, et al
• Court: Missouri Supreme Court

25 S.W. 947

122 Mo. 435

The State ex rel. Merriam, Petitioner, v. Ross, Judge, et al

Supreme Court of Missouri

June 4, 1894

Writ awarded.

H. S Priest for relator.

(1) Prohition is the proper method by which to determine the priority of jurisdiction as between courts of common jurisdiction. Thomas v. Mead, 36 Mo. 232; Trainer v. Porter, 45 Mo. 336; Ex parte Smith, 23 Ala. 94; Henry v. Steele, 28 Ark. 455; State v Allen, 45 Mo.App. 551. (2) The circuit court of Stoddard county was the first to take cognizance of the controversy not only because the petition of Merriam was first filed there, but also because it first asserted dominion over the property of the railway by the appointment of a receiver directing him forthwith to seize the property. First. As to jurisdiction by filing of petition with clerk, as between parties to the suit. Lumber Co. v. Wright, 21 S.W 811; Gordon v. Taylor, 53 Mich. 629; Wade on Notice, sec. 348; Maddox v. Humphries, 30 Tex. 494; Lyle v. Bradford, 7 T. B. Mon. 111-116; Seaver v. Lincoln, 21 Pick. 269; Co. v. Holleman, 27 P. 413, 414. Second. As to jurisdiction by cognizance of the controversy. Union Trust Co. v. Railroad, 6 Biss., 198; Gaylord v. Railroad, 6 Biss. 290; Judd v. Railroad, 24 Blatch. 420; Young v. Rollins, 85 N.C. 488; Heidritter v. Oil Cloth Co., 112 U.S. 294; Cooper v. Reynolds, 10 Wall. 308-317; Barton v. Barbour, 104 U.S. 126; French v. Hay, 22 Wall. 250; Taylor v. Carroll, 20 How. 583-591; Hagan v. Lucas, 10 Peters, 400; Maynard v. Bond, 67 Mo. 315; High on Receivers [2 Ed.], sec. 50, and authorities cited; Gluck & Becker on Receivers, sec. 30, p. 66; Beach on Receivers, sec. 20, p. 21. (3) Neither the original nor the amended bill, filed in the Cape Girardeau court of common pleas, contained any matter of which a court, either of law or equity, could have or entertain jurisdiction. Jones v. Bank, 10 Col. 473; French Bank Case, 53 Cal. 495; Smith v. Superior Court, 32 P. 322; Trust Co. v. Railroad, 29 F. 416; High v. McRea, Chase's Decs. 466; Kimball v. Goodburn, 32 Mich. 12; Bangs v. McIntosh, 23 Barb. 599; Att'y Gen. v. Bank, 1 Hop. 354; Att'y Gen. v. Ins. Co., 2 Johns. Ch. 271; Neal v. Hill, 16 Cal. 145; Port Huron v. Judge, 31 Mich. 456; Wait on Insolv. Corp., sec. 183; Gregory v. Gregory, 1 Jones & Spencer, 39; French v. Gifford, 30 Iowa 148; Att'y Gen. v. Earl of Clarendon, 17 Vesey, 491; Baker v. Backus, 32 Ill. 80. And this question may be raised by prohibition. Trainer v. Porter, 45 Mo. 336; Henry v. Steele, 28 Ark. 455. (4) They allege an evil purpose in the bringing of the Merriam suit. Motives actuating suitors in asserting their legal rights can not be the subject of judicial cognizance. 1 Am. and Eng. Encyclopedia of Law, title, Action, p. 179; Railroad v. Douglas, 9 N.Y. 445; Ramsey v. Gould, 57 Barb. 398; Mahan v. Brown, 13 Wend. 261; Campbell v. Carroll, 35 Mo.App. 640. (5) There can be no such thing as a cross bill where no cause of action or foundation of any jurisdiction is stated in the petition. R. S. 1889, secs. 2049, 2050. (6) Relator has the right to move independently of Doyle. Jenkins v. Jenkins, 1 Paige, 243; Jones v. Dougherty, 10 Ga. 274; McDougald v. Dougherty, 11 Ga. 570. (7) The only object in setting forth the proceedings of the Merriam suit was to show that that court had taken cognizance of the controversy which the Cape Girardeau court was endeavoring to wrest from it, and that it was competent and had jurisdiction to determine all matters in that controversy. State v. Hall, 10 S. Rep. 196; Thomson v. Truey, 60 N.Y. 31. (8) It is urged as another defense, that neither relator nor anyone for him has appeared in the common pleas court and objected to the jurisdiction. This is unnecessary where the defect of jurisdiction appears upon the face of the record, as it does in this case. First. The defect of jurisdiction as to subject-matter appears upon the face of the petition and amended petition. Second. That the object of the suit was to embarrass the Stoddard court in its proceedings in the Merriam case appears in a general averment in the original petition, and by specific averments in the amended bill, referring to the court and case. Trainer v. Porter, 45 Mo. 336; Vitt v. Owens, 42 Mo. 516; State v. County Court, 41 Mo. 49; Arnold v. Shields, 5 Dana (Ky.), 18; 6 Comyns' Dig., title, Prohibition, E; Walton v. Greenwood, 60 Me. 356; Chambers v. Green, 44 L. Jour. Ch. 600; DeHaber v. Queen, 17 Ad. & E. (N. S.) 171-214; Wardsworth v. Queen, 17 Ad. & E. (N. S.) 217. Third. Merriam was not a party to the suit in the common pleas; his interests are there unlawfully drawn in question, and he is not obliged to abandon his prior suit to become a party there, merely for the sake of raising the question of jurisdiction. Havermyer v. Superior Court, 84 Cal. 327-389; State v. Wilcox, 24 Minn. 143. (9) It is suggested, in impeachment of the order of Judge Wear, on July 25, 1893, appointing Klotz receiver, that it was made, first, after motions for change of venue had been lodged against him by the railway company and Doyle; second, without notice; and, third, that it was made while the judge was not in Stoddard county. (a) The lodging of an application for change of venue does not deprive the judge of jurisdiction; that is not divested until the order granting the same is entered. In re Whitson'e Estate, 89 Mo. 58; Calvin v. Dix, 79 Mo. 198; Henderson v. Henderson, 55 Mo. 198. (b) The appointment of a receiver without notice is a mere irregularity which can only be rectified on appeal, and can not be assailed collaterally. Greeley v. Bank, 103 Mo. 212; Greeley v. Thomson, 107 Mo. 577. (c) Orders have no dependence for validity upon the accidental place of signing, but upon the filing. Comstock v. Superior Court, 57 Cal. 625; Early v. Oliver, 63 Ga. 11. (10) There is an effort to impeach the first order of Judge Wear appointing a receiver, by showing that the bill of Merriam had not in fact been filed. Where the record shows, as this does, that a receiver was appointed on the same day on which the action was commenced, it will be presumed that each was done in its proper order. Elwood v. Bank, 41 Kan. 475.

John W. Noble, George D. Reynolds and M. R. Smith for respondents.

(1) It has never been held that anyone other than a party in interest can invoke the aid of the superior tribunal to prohibit the proceeding of a lower court, because of a conflict of jurisdiction with some other court. State v Klein, 22 S.W. 693. First. Such application is necessarily based, not upon a want of jurisdiction, but, if upon any recognizable ground, it must be upon an unauthorized persistence in an act under acknowledged jurisdiction; and a stranger can sue out the writ, if at all, only when there is an obvious and entire want of jurisdiction in the court to be prohibited. The very assertion that there is a conflict of jurisdiction admits there is jurisdiction in each court. State ex rel. v. Withrow, 108 Mo. 7. Where both parties to the action in the lower court wish that court to decide, a stranger can not, as a matter of course, prevent it. Chambers v. Green, L. R. 10 Eq. 552. (2) Before the relator could gain any standing in this court on either of these propositions, to obtain a writ of prohibition, the question of jurisdiction or conflict should have been formally presented in the Cape Girardeau common pleas court, and been pressed there to a decision. State ex rel. v. Withrow, 108 Mo. 7; Barnes v. Gottschalk, 3 Mo.App. 111, and authorities there cited; State ex rel. v. Laughlin, 9 Mo.App. 486, and authorities there cited; Railroad v. Supreme Court, 59 Cal. 471; State v. Henry, 41 La. Ann. 908; Ex parte Hamilton, 51 Ala. 62. (3) It is no reply to say the relator here is a stranger, or that a stranger can sue for a writ of prohibition. The trustee of a railroad mortgage represents the bondholders in all legal proceedings carried on by him affecting his trust, to which they are not actual parties, and whatever binds him, if he acts in good faith, binds them. Shaw v. Railroad, 100 U.S. 605; Richter v. Jerome, 123 U.S. 233; Beales v. Railroad, 133 U.S. 290; Jones on Railroad Securities [Ed. 1879], secs. 361, 433; Knapp v. Railroad, 20 Wall. 117; Coal Co. v. Blatchford, 11 Wall. 172; Campbell v. Railroad, 1 Woods, 368. (4) There has been no such conflict of jurisdiction as calls for the interference by prohibition. The writ will not issue to restrain the action of a court of competent jurisdiction from doing an act within its judicial authority, merely because it may conflict with some act of some other court of co-ordinate jurisdiction. The want of jurisdiction must appear upon the record of the court whose action it is sought to prohibit. State v. Judge, 29 La. Ann. 360; People v. Co. Ct., 36 Hun, 218; 2 Spelling's Extraordinary Relief, sec. 1716, p. 1395; State v. Klein, 22 S.W. 693. (5) The receivership of Klotz was absolutely void for the following reasons, also: First. Because the receivership of March 3, as was also that of July 25, 1893, was made without any notice whatever. Railroad v. Jewett, 37 Ohio St. 649; Railroad v. Sloan, 31 Ohio St. 15; Verplank v. Ins. Co., 2 Paige, 438; High on Receivers [Ed. 1876], sec. 111, et seq. Second. The first order was made when there was no suit pending, and out of the county of the court making it and was void. High on Receivers [Ed. 1876], 317; Beach on Receivers [Ed. 1887], 50; Baker v. Backus, 32 Ill. 79; Grey v. Doak, 47 Kan. 236; Crowder v. Moore, 52 Ala. 221; Hardy v. McClelland, 53 Miss. 511; Bank v. Kent, 43 Mich. 296; Jones v. Schall, 45 Mich. 380; Jones v. Bank, 10 Col. 473. (6) There has been willful delay in making the application, so that any right that might have by any possibility existed is lost. In re Denton, 1 Hurlstone &...