State ex rel. Pythian Sisters v. Cook

• Decision Date: 20 November 1939
• Docket Number: No. 19510.,19510.
• Citation: State ex rel. Pythian Sisters v. Cook, 136 S.W.2d 142, 234 Mo.App. 898 (Mo. App. 1939)
• Parties: STATE OF MISSOURI, AT THE RELATION OF SUPREME TEMPLE PYTHIAN SISTERS, A CORPORATION, RELATOR, v. JOHN F. COOK, JUDGE OF DIVISION No. 2, OF THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, AT KANSAS CITY, RESPONDENT.
• Court: Missouri Court of Appeals

136 S.W.2d 142

STATE OF MISSOURI, AT THE RELATION OF SUPREME TEMPLE PYTHIAN SISTERS, A CORPORATION, RELATOR, v.JOHN F. COOK, JUDGE OF DIVISION No. 2, OF THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, AT KANSAS CITY, RESPONDENT.

No. 19510.

Kansas City Court of Appeals, Missouri.

November 20, 1939.

Original Proceeding in Prohibition.

PRELIMINARY WRIT QUASHED.

William R. Baker, Fred Bellemere, Marcy K. Brown, Jr., Earl B. Swarner and Eugene R. Brouse for relator.

(1) Upon neither count of the injunction petition does respondent have any jurisdiction because (a) such petition in neither count states facts sufficient to bring plaintiff's claim within any recognized head of equity jurisdiction; (b) such petition fails to state facts sufficient to constitute a cause of action in injunction.State ex rel. Kenamore v. Wood et al., 155 Mo. 425;State ex rel. Hog Haven Farms v. Pearcy, Judge, 328 Mo. 560, 41 S.W. (2d) 403;State ex rel. Hyde v. Westhues, 316 Mo. 457;State ex rel. Hwy. Comm. v. Sevier, 339 Mo. 479;State of Mo. ex rel. Johnson et al. v. Sevier, 339 Mo. 483.(2) The writ should be made absolute because in the injunction suit plaintiffs therein seek to interfere with the internal affairs of a beneficial association when they have no property rights directly involved and when they have not followed the remedies provided for by the rules of the order.State ex rel. Cytron v. Kirkwood, 100 S.W. (2d) 450;State ex rel. K.C. Exchange Co. et al. v. Harris, Judge, et al., 81 S.W. (2d) 632;State ex rel. Dunn v. Cowan, 105 S.W. (2d) 1009, l.c. 1010;Barthell v. Zachman(Tenn.), 36 S.W. (2d) 886, l.c. 887;McCantz v. Brotherhood of Painters, etc.(Tex.), 13 S.W. (2d) 902, l.c. 904;Mulcahey v. Huddell(Mass.), 172 N.E. 796, l.c. 797;Agrippino v. Perrotti(Mass.), 16 N.E. 793, l.c. 794;Snay v. Lovely(Mass.), 176 N.E. 791, l.c. 793;Crowden v. Dieu Nous Protege, etc., Assn.(La.), 146 So. 710, l.c. 711;State ex rel. Johnson v. Church(La.), 144 So. 639, l.c. 639;Frawley v. Railroad Co.(N.J.), 186 Atl. 41, l.c. 42;Everett v. First Baptist Church(N.J.), 142 Atl. 428;Carrigan v. Benevolent Association(N.J.), 3 Atl.(2d) 587;Emma v. Order Sons of Italy(N.J.), 145 Atl. 630, l.c. 631;Lodge No. 19, Svete Ime Isusovo(Lodge No. 19, Croation Fraternal Union of America) v. Svi Sveti (Lodge No. 1, Croation Fraternal Union of America), et al.(Pa.), 185 Atl. 650;Coffey v. Los Angeles Fireman's Relief Association(Calif.), 71 Pac. (2d) 328;Franklin v. Sovereign Camp, W.O.W.(Okla.), 291 Pac. 513, l.c. 517;Fish v. Huddell, 51 Fed. (2d) 319, l.c. 320;Campbell v. Brotherhood of Locomotive Firemen, etc.(Va.), 181 S.E. 444, l.c. 445-6;State ex rel. Buckner v. Landwehr(Mo.), 261 S.W. 699;State ex rel. Baumhoff v. Taxpayer's League of St. Louis Co. et al.(Mo.), 87 S.W. (2d) 207, l.c. 208;State ex rel. v. Wood, 155 Mo. 425, supra;Hall v. Morrin et al.(Mo.), 293 S.W. 435;State ex rel. Onion v. Supreme Temple Pythian Sisters et al.(Mo.), 54 S.W. (2d) 468;Hynes v. Lillis et al.(Mo.), 170 S.W. 396;Craft v. Balderston (Idaho), 78 Pac. (2d) 122;Franklin v. Sovereign Camp, W.O.W., supra,291 Pac. 513;State ex rel. Butterworth v. Frater(Wash.), 228 Pac. 295;Holmes v. Gilman(N.Y.), 34 N.E. 204.(3)The court erred in issuing the commission to take depositions and to shortening the time.Secs. 1761, 1763, 1765, 1766, 1767, R.S. of Mo., 1929.

John W. Hudson, Chester L. Smith and Inghram D. Hook for respondent.

(1) A petition for a writ of prohibition cannot usurp the functions of a demurrer or appeal; if the case is within the jurisdiction of the trial court, then that court alone has jurisdiction and the right to decide the sufficiency of the petition, subject solely to the process of appeal; and such rights are not to be taken away from such trial court through the writ of prohibition on the apprehension that such court will not decide questions correctly.State ex rel. Abel v. Gates, 190 Mo. 540, 89 S.W. 881;State ex rel. Lumber Co. v. Goodrich, 138 Mo. App. 283, 120 S.W. 646;State ex rel. Bromschwig v. Hartman, 221 Mo. App. 215, 300 S.W. 1054;State ex rel. Finch v. Duncan, 195 Mo. App. 541, 193 S.W. 950.(2)The court below did have jurisdiction to entertain the instant action, it having been long established in this State and elsewhere that a minority stockholder or member of a corporation or organization can complain in equity and utilize its injunctive process with respect to unauthorized, ultra vires or fraudulent acts of a corporation and its agencies.Fisher v. Patton, 134 Mo. 32, 34 S.W. 1096;Whitehead v. Farmers' Mutual, 65 S.W. (2d) 65;Shafer v. Home Co., 227 Mo. App. 347, 52 S.W. (2d) 462;Fletcher's Cyclopedia on Corporations, secs. 1526, 3314, 3994, 3997;14 C.J., 875-876;Bromschwig v. Carthage Co., 334 Mo. 319, 66 S.W. (2d) 889;Hyams v. Calumet Co., 221 Fed. 529;Bolin v. Sovereign Camp, 112 S.W. (2d) 582.The excess use and usurpation of authority by the committee and the right of plaintiffs, as members of such fraternal organization, to complain thereof in equity are further exemplified by the following authorities: 7 C.J., 1091-1092; 14A.C.J. 97;Hiatt v. Fraternal Home, 99 Mo. App. 105, 72 S.W. 463;Draffron v. Modern Woodmen, 190 Mo. App. 303, 176 S.W. 498.(3) There is no question here of property rights, and if such question existed it would be for the court below, as held by the below authorities.In any event, plaintiffs, as members of relator's fraternal organization, have the right to complain of the excess and unauthorized use of authority by such committee, on behalf of plaintiffs and other members of relator's organization; and certainly the right of a stockholder or member of a corporation or organization to obtain a right in insurance, which is cheaper in one form than another, is a valuable right and benefit in any interpretation and meaning of property rights.50 C.J. 730, 738-739;Munden v. Harris, 153 Mo. App. 652, 134 S.W. 1076;McAlister v. Pritchard, 287 Mo. 494, 230 S.W. 66;Daffron v. Modern Woodmen, 190 Mo. App. 303, 176 S.W. 504;State ex rel. Buckner v. Landwehr, 261 S.W. 699.The question of property rights is for the trial court and is not to be reached by a writ of prohibition.State ex rel. Abel v. Gates, 190 Mo. 540, 89 S.W. 881.(4)Plaintiffs' petition alleges injury to all members of relator's fraternal organization by reason of such unauthorized and improper acts of such committee and by reason of such fraudulent concealment, and is not restricted to injury to plaintiffs alone, despite relator's inferences to the contrary.(5) The rule as to inference with internal affairs of a corporation has no application here; such rule is based upon discretion and skill in the operation of a corporate business; here we have a violation of express and specific authority delegated to an agency committee of relator's organization which had been constituted, and solely delegated, to accomplish a particular, specified thing, and which, under plaintiffs' allegations in their petition, did something else, to the injury of members of relator's organization.Fletcher's Cyclopedia on Corporations, sec. 3322.(6)Plaintiffs' preliminary compliance with the rules of relator's organization with respect to their complaint is wholly immaterial, insofar as the instant prohibition proceeding is concerned.Edwards v. American Patriots, 164 Mo. App. 231, 144 S.W. 1117;McMahon v. Supreme Tent, 151 Mo. 522, 52 S.W. 384;Hall v. Realty Co., 267 S.W. 407;Weir v. Bay State Co., 91 Fed. 940;Hyams v. Calumet Co., 221 Fed. 529;Helm v. Talmadge, 40 S.W. (2d) 496;Kane v. Supreme Tent, 113 Mo. App. 104, 87 S.W. 547;Potievsky v. Independent Order, 134 Mo. App. 471, 114 S.W. 572.(7) The question of the taking of the depositions which relator prevented by its filing of its petition for prohibition is now a moot question; such depositions were not taken, or attempted to be taken, following the filing of the petition for prohibition.Corken v. Workman, 98 S.W. (2d) 153.

SPERRY, C.

This is an original proceeding in prohibition.

Relator, Supreme Temple of Pythian Sisters, is a fraternal beneficial corporation, organized under a pro forma decree issued by the Circuit Court of Jackson County, Missouri.Respondent is judge of Division No. 2, of the Circuit Court of Jackson County.

Margaret W. Latimer and Rolly Johnson, members in good standing in relator order, filed a petition in the court of respondent, praying that relator be restrained from enforcing a contract between it and Detroit Life Insurance Company, whereby relator had agreed to receive applications from its members for life insurance with said company.Respondent took jurisdiction of said injunction suit and relator sued out this writ of prohibition.Our preliminary writ issued, respondent filed return and, thereupon, relator moved for judgment on the pleadings.

The sole question before us is that of whether or not Latimer and Johnson have stated a cause of action in equity, either properly or defectively, which confers on the circuit court jurisdiction to hear and determine the cause stated or attempted to be stated.[State ex rel. Johnson v. Sevier, 339 Mo. 483, l.c. 491.]Prohibition will not take the place of a demurrer to test the pleadings:

"If the case stated, or attempted to be stated, in the petition, is of a subject over which the circuit court has no jurisdiction, yet the court gives indication of a purpose to entertain it, an application for a writ of prohibition would be relieved, but if it be that the petition merely states defectively a cause of the nature of which the court has jurisdiction a writ of prohibition will not issue merely because it is feared that the court might erroneously decide that it was sufficient."[State ex rel. Abel v. Gates, 190 Mo. 540, l.c. 553.]

Nor can prohibition be invoked as a substitute for appeal or writ of error.[State ex rel. Hyde v. Westhues, 316 Mo. 457.]The...