State ex rel. Pettibone v. Mulloy

• Decision Date: 07 July 1932
• Docket Number: No. 32270.,32270.
• Citation: 52 S.W.2d 402
• Parties: STATE OF MISSOURI at the Relation of HOLMAN D. PETTIBONE, Relator, v. JERRY MULLOY, Judge of Division No. 2 of the Circuit Court of St. Louis County, and JOSEPH A. STIFFELMAN.
• Court: Missouri Supreme Court

52 S.W.2d 402

STATE OF MISSOURI at the Relation of HOLMAN D. PETTIBONE, Relator, v. JERRY MULLOY, Judge of Division No. 2 of the Circuit Court of St. Louis County, and JOSEPH A. STIFFELMAN.

No. 32270.

Supreme Court of Missouri, in Banc.

July 7, 1932.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE.

S. Mayner Wallace, Stern & Burnett and B.L. Liberman for relator.

(1) The appointment of a receiver by the circuit court without notice to relator is in excess of the court's jurisdiction. The petition of Landau, upon which the appointment was made, alleges no facts showing any emergency or urgent necessity for the appointment of a receiver without notice. State ex rel. v. Mulloy, 43 S.W. (2d) 806; State ex rel. v. Calhoun, 234 S.W. 857; State ex rel. v. Dearing, 184 Mo. 664; State ex rel. v. Reynolds, 275 Mo. 113; St. Louis, etc., Railroad v. Wear, 135 Mo. 230; Rees v. Andrews, 169 Mo. 189. (2) The petition below discloses that the only relief sought is the appointment of a receiver and fails to state facts which would give the court jurisdiction to appoint a receiver or to award plaintiff any relief whatsoever. State ex rel. v. Mulloy, 43 S.W. (2d) 812; Price v. Trust Co., 178 S.W. 749; State ex rel. v. Reynolds, 289 Mo. 519; Commonwealth Finance Corp. v. Missouri Motor Bus Co., 233 S.W. 167. (3) Prohibition is the proper remedy for the illegal and void appointment of a receiver. State ex rel. v. Mulloy, 43 S.W. (2d) 810; State ex rel. v. Dearing, 184 Mo. 647, l.c. 664; St. Louis, etc., Railroad Co. v. Wear, 135 Mo. 261; Rees v. Andrews, 169 Mo. 189. (4) The court below was without jurisdiction to dismiss the proceedings below and violated the preliminary writ in prohibition issued by this court. State ex rel. Knisely v. Board of Trustees, 268 Mo. 163, 186 S.W. 680; State ex rel. Powers v. Rassieur, 180 S.W. 915; Conrades v. Blue Bird Appliance Co., 302 Mo. 627, 259 S.W. 98; State v. Hartmann, 262 S.W. 707.

HENWOOD, J.

This is an original proceeding wherein relator seeks to prohibit respondent judge from enforcing an order appointing respondent Stiffelman temporary receiver of certain property owned by relator, and from making any further orders, in a suit filed by Ike Landau in the Circuit Court of St. Louis County against relator and nine others, and to prohibit respondent Stiffelman from taking charge of said property.

The temporary receivership order was entered on April 8, 1932, immediately upon the filing of the petition in the suit below; also an order directing defendants in said suit to show cause, on April 18, why said receivership should not be made permanent.

Our preliminary rule in prohibition was issued and served on April 18.

On April 29, respondents filed their return, in which they admit that respondent Mulloy is Judge of Division No. 2 of the Circuit Court of St. Louis County, and that respondent Stiffelman was appointed temporary receiver of certain property owned by relator, as alleged by relator in his petition for a writ of prohibition; and "for further return" respondents state that the suit below was dismissed on the application of plaintiff therein on April 28 (a certified copy of the order of dismissal being attached to the return), and for that reason respondents pray that our preliminary rule in prohibition be quashed.

Relator contends that the order of dismissal of the suit below is void because it was made in violation of our preliminary rule in prohibition; and as a ground for prohibition relator contends that the allegations of plaintiff's petition in the suit below are not sufficient to authorize the appointment of a receiver.

Respondents have filed no brief, and as shown above their return presents no defense herein except the dismissal of the suit below.

[1] I. In making the order of dismissal of the suit below respondent judge violated our preliminary rule in prohibition, in which he was commanded "to take no further steps" in said suit until the further order of this court. Therefore, said order is void and of no force or effect, and for the purpose of this proceeding the suit below must be regarded as still pending. While we will assume, in this instance, that respondent judge did not intentionally disobey the mandate of this court, it seems advisable to repeat here what we said on a former occasion. It follows:

"Under our law and practice, after our preliminary writ is granted the court to which it is directed has absolutely no authority or jurisdiction to, in any manner, proceed further. It cannot entertain motions to dismiss the proceedings, or take any other action in the premises. This should be better understood by the nisi courts of this State, as our records disclose that, in some cases, after the issuance of our preliminary rule the court nisi has proceeded to act to some extent. We take this occasion to say that after the issuance of our preliminary rule, or even after notice is served of the intended application for our preliminary rule, the trial court should proceed no further, but await the action of this court." [State ex rel. v. Board of Trustees of Y.W.C.A., 268 Mo. l.c. 167, 186 S.W. l.c. 681.]

II. In his petition in the suit below plaintiff alleges, in substance, that he brings the suit in behalf of himself and all other holders of certain bonds; that defendant Pettibone (relator herein) is the owner of a certain lot in St. Louis County; that on said lot is located the Parkview Building, consisting of one large theatre room, seven store rooms and approximately forty-five apartments; that in order to complete the construction of said...