State ex rel. Robertson v. Sevier, 36419.

• Decision Date: 07 November 1939
• Docket Number: No. 36419.,36419.
• Parties: STATE OF MISSOURI at the relation of GEORGE A.S. ROBERTSON, Superintendent of the Insurance Department of the State, Relator, v. NIKE G. SEVIER.
• Court: Missouri Supreme Court

132 S.W.2d 961 STATE OF MISSOURI at the relation of GEORGE A.S. ROBERTSON, Superintendent of the Insurance Department of the State, Relator,
v.
NIKE G. SEVIER. No. 36419. Supreme Court of Missouri. Court en Banc, November 7, 1939.

[132 S.W.2d 962]

Prohibition.

PRELIMINARY RULE DISCHARGED TO THE EXTENT THAT THE RESPONDENT CIRCUIT JUDGE BE PERMITTED TO MAKE AN ORDER PAYING TO THE SUPERINTENDENT OF INSURANCE THE MONEY NOW IN THE REGISTRY OF HIS COURT, BUT IN ALL OTHER RESPECTS WRIT IS MADE ABSOLUTE.

Roy McKittrick, Attorney General, Drake Watson and Harry H. Kay, Assistant Attorneys General, for relator; Charles L. Henson of counsel.

(1) Prohibition is the proper remedy where a court is about to act in excess of jurisdiction as well as where it is about to act without jurisdiction. Dahlberg v. Fisse, 40 S.W. (2d) 606; State ex rel. v. Latshaw, 237 S.W. 770. (2) Before a court has jurisdiction in a particular case, it must have jurisdiction of the subject matter and of the parties and must also have power to render the particular judgment in the particular case. State ex rel. Woodmansee v. Ridge, 123 S.W. (2d) 20; Aetna Ins. Co. v. O'Malley, 118 S.W. (2d) 3; Gray v. Clement, 286 Mo. 100, 227 S.W. 111; 296 Mo. 497, 246 S.W. 940. (3) It has been held by this court that respondent does not have jurisdiction to administer the funds mentioned in the motion pending before him. (4) If before a court can render a judgment it must of necessity make determinations which it does not have the power to make, then the court does not have jurisdiction of the cause nor jurisdiction to render the judgment. State ex rel. v. Denton, 229 Mo. 187. (5) The prayer of a pleading does not limit the court in granting relief, but the court can grant such relief as the facts set forth in the pleading justify. Caldwell v. Eubanks, 303 S.W. (2d) 980; 49 C.J. 173; 21 R.C.L. 489; Misgrove v. Bank, 187 Mo. App. 496. (6) The Central Missouri Trust Company movant in motion pending before respondent is not entitled to inject the issues raised by the motion in the case of Aetna v. O'Malley to which it was not a party. Mountain Grove Creamery, Poultry & Prod. Co. v. Willow Sprgs. Creamery Co., 202 S.W. 1054; Monticello Bldg. Corp. v. Monticello Inv. Co., 52 S.W. (2d) 545; Zeitering v. Hargadine-McKittrick D.G. Co., 250 S.W. 913, 298 Mo. 461.

W.T. Ragland and Chas. H. Mayer for respondent.

(1) There being a motion for judgment on the pleadings, the facts stated in the return are admitted, and the sole question here is as to the legal sufficiency of respondent's return. It is from the admissions and allegations of that return that the facts to be considered must come. State ex rel. Ward v. McQuillin, 262 Mo. 260; State ex rel. Karbe v. Bader, 336 Mo. 263. (2) The Supreme Court did not hold in Aetna Insurance Co. v. O'Malley, 118 S.W. (2d) 3, either expressly or by implication, that the circuit court was without jurisdiction to appoint custodians to receive the moneys paid into court by the insurance companies and to deposit such monies in a bank. (3) If the circuit court had the authority to order and control the accounting, which is conceded by all, then said court had jurisdiction to appoint, and it was necessary for the court to appoint, some person, regardless of whether it called him a custodian, or clerk, or referee or receiver, to receive the money when, as the accounting progressed, the money was paid into court. Morgan v. Willman, 318 Mo. 171. (4) The circuit court had jurisdiction to order the funds deposited in a bank. State ex rel. North British & Merc. Ins. Co., Ltd., v. Thompson, 330 Mo. 1155; American Constitution Fire Ins. Co. v. O'Malley, 113 S.W. (2d) 804. (5) The Central Missouri Trust Company was in no sense an intervener. Monticello Building Corp. v. Monticello Inv. Co., 330 Mo. 1138; Rocca v. Thompson, 233 U.S. 317, 56 L. Ed. 453; Black's Law Dictionary, p. 651; 33 C.J. 476-7. (6) The money, although deposited in the bank, is still legally in the registry of the court depositing it; and the Central Missouri Trust Company, in accepting the deposits under the order of the court, became a representative or agent of the court, subject to the court's orders. Jones v. Merchants Natl. Bank, 76 Fed. 683, 35 L.R.A. 698. (7) As such representative of the circuit court, the trust company's motion was a simple request for permission and authority to pay a specific sum of money to a specific person, which person the trust company believed was entitled to it. The universally approved and proper proceeding, if, indeed, it is not the only permissible proceeding, for reaching money in the registry of the court or in a depository of the court, is by motion filed in the same cause in which the money has been deposited; there would seem to be no other way for the depository itself, claiming no interest in the fund, to proceed. Gregory v. Boston Safe Deposit Co., 144 U.S. 665, 36 L. Ed. 585; Jones v. Merchants Natl. Bank, 76 Fed. 683, 35 L.R.A. 698; Gregory v. Merchants Natl. Bank, 171 Mass. 67, 50 N.E. 520; 18 C.J. 779, sec. 52; State ex rel. Merriam v. Ross, 136 Mo. 271; State ex rel. Stroh v. Klene, 276 Mo. 208.

TIPTON, C.J.

Prohibition: Relator seeks to prohibit respondent from passing upon a motion filed by the Central Missouri Trust Company, in which it asks the respondent to make an order directing it to pay to the relator the money it now has on deposit growing out of the restitution proceedings in the Aetna Insurance Company case, commonly known as the 10 per cent insurance rate reduction case.

Seventeen years ago...