State ex rel. Robertson v. Sevier

• Decision Date: 21 April 1938
• 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, Judge of the Circuit Court of Cole County
• Court: Missouri Supreme Court

115 S.W.2d 810

342 Mo. 346

State of Missouri at the relation of George A. S. Robertson, Superintendent of the Insurance Department of the State, Relator, v. Nike G. Sevier, Judge of the Circuit Court of Cole County

Supreme Court of Missouri

April 21, 1938

[Copyrighted Material Omitted]

Reported at 342 Mo. 346 at 352.

Original Opinion of April 21, 1938, Reported at 342 Mo. 346.

Tipton J. Ellison and Leedy, JJ., concur.

OPINION

Addendum

A reply to what is said above in this dissenting opinion has just been circulated. This necessitates the addition of a few words. Both the principal opinion and the reply proceed on the theory that American Constitution Insurance Company et al. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795, decided last February, held that the Circuit Court of Cole County had no jurisdiction of the cause of action. That is not the fact. The opinion in that case received a carrying vote only as to the result, namely, that the judgment of the circuit court be affirmed and the impounded funds be turned over to the Superintendent of Insurance. Hays, J., may have concurred in the result because he believed the cause should be affirmed on the merits. As a matter of fact, the files of the court show he was of that opinion and thought as late as last December that the circuit court did have jurisdiction of the cause of action. Therefore, the reasoning and conclusion to the contrary in that decision did not represent the views of a majority of the judges of this court.

Judge Hays was recorded as concurring in the majority ruling in the instant prohibition case, which possibly may be thought to indicate he has changed his views on the question of jurisdiction. (I do not know, since he has been absent during the times herein mentioned, on account of illness, and his vote has simply been recorded.) But whether he has or has not, the fact cannot operate retroactively and give the American Fire Insurance Company case any authoritative effect that it did not have when handed down. Neither could respondent know several days ago when he filed his suggestions in opposition to the issuance of a writ of prohibition herein that it would not be claimed the opinion has an effect it did not have when it was decided.

The practice followed by this court without deviation has been that where an application for a writ of prohibition is filed, the application will either be denied or a provisional rule in prohibition issued, except where the respondent by a demurrer or motion for judgment on the pleadings, formally admits the truth of the allegations in the application. Even then he admits them only for the purposes of the writ and does not concede they are actually true. [State ex rel. Jackson County v. Waltner, 340 Mo. 137, 144 (3), 100 S.W.2d 272, 276 (4).] In determining whether we issue the provisional rule we look only to facts stated in the application. [State ex rel. Haughey v. Ryan, 180 Mo. 32, 79 S.W. 429.] Consequently, a respondent in his suggestions in opposition to the issuance of the provisional rule should assume the facts stated in the application to be true. It is evident from the face of respondent's suggestions in opposition to the issuance of the provisional rule that he did not intend to submit the cause on the allegations of the relator's petition without oral argument. His right to brief and argue the case is plain, in view of the fact that American Constitution Fire Insurance Co. v. O'Malley, supra, is not controlling authority for anything it says other than the result. If the circuit court did have jurisdiction of the cause and the same were affirmed on the merits, quite a different question would be presented from that decided in the principal opinion here.

It is announced that Judge Hays will be present at the May Term of this court en banc, and thereafter, when the cause could be heard by the whole court. To prevent this by the summary issuance of a writ absolute seems to me an injustice. Ellison and Leedy, JJ., concur.

DISSENT BY: FRANK

Reply to Dissenting Opinion

FRANK J.

In the dissenting opinion it is asserted that this court does not have jurisdiction to grant an absolute writ on a mere application for prohibition; that the provisional rule should issue, so that respondent would have an opportunity to either admit or deny the facts alleged in the application and an opportunity for a hearing on the issues there made.

There would be merit in this contention if the facts were in dispute. But since the facts are admitted, whether or not relator is entitled to prohibition is a pure question of law which can and should be decided now.

In 50 Corpus Juris, page 703, section 116, the law is stated as follows:

"Where only a question of law is involved, it is not necessary to issue an alternative writ in the first instance."

The same authority on the same page in section 113, states the law thus:

". . . the usual practice on applications for prohibition is to issue, in the first instance, a rule to show cause why the writ should not be granted, which will be made absolute or discharged according to the circumstances of the case. However, if due notice has been given to the opposite parties, the court may, without a rule nisi, award an absolute writ."

In Ex parte Lyon, 60 Ala. 650, 655, the law is thus stated:

"In the present case, the chancellor and Mr. Foster here had reasonable notice of the time and place of making this application; the whole record is before us, and the merits of the application have been fully argued. We, therefore, consider it unnecessary to award a rule nisi, before awarding an absolute writ."

The law which should govern this case is well stated by this court en banc in the case of State ex rel. v. Barnett, 245 Mo. 99, 149 S.W. 311. In that case prohibition was sought to prohibit the Circuit Court of Audrain County from proceeding further with a cause pending in that court. The provisional rule was granted, and the respondent instead of filing a return, filed a demurrer to relator's petition for the writ. We there stated the rule as follows:

"The issues in this case are made by the petition for the writ of prohibition and respondent's demurrer. The demurrer admits all well-pleaded facts in the petition stated, and if these facts, thus admitted show relators' right to the writ the demurrer should be overruled, and the writ made permanent. In other words no further pleadings will be tolerated. Such seems to be the rule of this court as well as the general rule." (Italics ours.)

While in the case at bar the provisional rule has not been issued and there is no demurrer to the petition, as in the cited case, but this difference in the facts does not render the ruling in the cited case inapplicable to the instant case. As we read the cited case it holds that as soon as the facts are admitted, no further proceedings will be tolerated, and it will then be determined whether the relator is entitled to an absolute writ of prohibition on the admitted facts. The manner in which the facts are admitted would not change the rule. If the facts in the cited case had been admitted before the provisional rule was issued...