State ex rel. Moberly v. Sevier

• Decision Date: 20 November 1935
• Docket Number: No. 34067.,34067.
• Citation: 88 S.W.2d 154
• Parties: STATE OF MISSOURI at the Relation of O.H. MOBERLY, Commissioner of Finance, Relator, v. NIKE SEVIER, Judge of the Circuit Court of Cole County.
• Court: Missouri Supreme Court

88 S.W.2d 154 STATE OF MISSOURI at the Relation of O.H. MOBERLY, Commissioner of Finance, Relator,
v.
NIKE SEVIER, Judge of the Circuit Court of Cole County. No. 34067. Supreme Court of Missouri. Court en Banc, November 20, 1935.

[88 S.W.2d 155]

Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

Roy McKittrick, Attorney General, James L. HornBostel and Covell R. Hewitt, Assistant Attorneys General, for relator.

(1) Prohibition lies to prevent the exercise of judicial power where there is a total lack of jurisdiction, or where the court is proceeding in excess of its jurisdiction. State ex rel. v. Fort, 210 Mo. 525; State ex rel. Tuller v. Seehorn, 246 Mo. 585; State ex rel. Orr v. Latshaw, 237 S.W. 771; High Ex. Rem. (3 Ed.), sec. 762, p. 705. (2) Motion for judgment on the pleadings admits only such facts as are material and well pleaded in respondent's return. (a) Demurrer does not confess immaterial matters or conclusions of law. State ex rel. McCaffery v. Aloe, 152 Mo. 476; State ex rel. United States F. & G. Co. v. Harty, 276 Mo. 593; State ex rel. Connors v. Shelton, 238 Mo. 286. (3) Matters omitted in petition may be supplied and cured by recital in respondent's return. Fisher v. Central Lead Co., 156 Mo. 485; Grace v. Nesbitt, 109 Mo. 15; Maysville v. Truex, 139 S.W. 390, 235 Mo. 625; State ex inf. v. Gromer, 252 S.W. 707. (4) In prohibition proceeding, answer stating that respondent had no knowledge of facts alleged held not to tender issue. State ex rel. Townsend v. Mueller, 51 S.W. (2d) 10; State ex rel. Holtkamp v. Hartmann, 51 S.W. (2d) 26; Watson v. Hawkins, 60 Mo. 553. (5) The statutes provide a complete and exclusive scheme for liquidation of failed banks. (a) Section 5321, Revised Statutes 1929, provides the exclusive method whereby the action of the Commissioner of Finance in taking possession of a bank may be tested. Secs. 5316, 5319, 5321, R.S. 1929; Kirrane v. Boone, 66 S.W. (2d) 865; Commerce Trust Co. v. Farmers' Exchange Bank of Gallatin, 61 S.W. (2d) 930; In re Union Bank of Brooklyn, 163 N.Y. Supp. 488. (6) The Circuit Court of Cole County was without authority to issue writ of injunction of date January 19, 1935, and was without authority to issue its order of January 22, 1935. Secs. 5316, 5319, 5321, R.S. 1929; Bank of Oak Ridge v. Duncan, 40 S.W. (2d) 660. (7) Where respondent in injunction proceeding was not given opportunity to plead, the rule that lower court's jurisdiction must be first challenged does not apply. State ex rel. Anheuser-Busch Brewing Assn. v. Eby, 170 Mo. 521; State ex rel. v. Bright, 224 Mo. 525; State ex rel. Mo. Pac. Ry. Co. v. Williams, 221 Mo. 247; State ex rel. Ross v. Sevier, 69 S.W. (2d) 666; State ex rel. McCaffery v. Aloe, 152 Mo. 484.

J.C. Dorian and H.P. Lauf for respondent.

(1) The circuit courts of this State are courts of equity having general original equity jurisdiction and the presumption is in favor of jurisdiction. Davidson v. Schmidt, 256 Mo. 18; State ex rel. v. Dearing, 180 Mo. 64; Tuttle v. Blow, 180 Mo. 625. (2) Section 5321, Revised Statutes 1929, is not exclusive and does not deprive equity of its general jurisdiction to grant injunctive relief. Hudson v. Wright, 204 Mo. 412; Kansas City v. Field, 226 S.W. 27; Woodward v. Woodward, 148 Mo. 246; Hickman v. Kansas City, 120 Mo. 110; Brandon v. Carter, 119 Mo. 581; Bruecker v. St. Louis, 246 S.W. 889; Bostic v. Workman, 31 S.W. (2d) 218. (3) A writ of prohibition will not be directed to an...