State ex rel. Scott v. Buzard

• Decision Date: 18 November 1940
• Citation: 144 S.W.2d 847,235 Mo.App. 636
• Parties: STATE OF MISSOURI EX REL. EMMITT SCOTT, RELATOR, v. PAUL A. BUZARD, JUDGE, RESPONDENT
• Court: Kansas Court of Appeals

144 S.W.2d 847

235 Mo.App. 636

STATE OF MISSOURI EX REL. EMMITT SCOTT, RELATOR, v. PAUL A. BUZARD, JUDGE, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 18, 1940

PRELIMINARY WRIT DISCHARGED; PERMANENT WRIT DENIED.

Permanent writ denied and preliminary rule discharged.

James D. Pouncey for relator.

(1) Respondent was without jurisdiction to determine title and ownership of United States Gold Certificates in the suit filed by the Bonded Wrecking and Lumber Company, a corporation, because: (a) The sole and exclusive method and procedure to determine the title and ownership of the lost United States Gold Certificates is in accordance with Chapter 128, Revised Statutes of Missouri, 1929, and under the law the relator had a right to maintain the replevin suit for the possession of the lost United States Gold Certificates in order to comply with the law. Foster v. Fidelity Safe Deposit Co., 174 S.W. 376; Hoagland v. Highland Park Amusement Co., 170 Mo. 335; State ex rel. v Pratt, 183 Mo.App. 213, 170 S.W. 418; Art. 12, Sec 1609, R. S. of Missouri, 1929 (Prohibition, Writ of). (2) Relator's replevin suit should not have been stayed by the respondent because: (a) Relator was entitled to possession of said lost United States Gold Certificates and relator's replevin suit was the proper action to be brought under the law. Replevin action of relator was the first suit filed and gave the court the original, prior and exclusive jurisdiction of the parties and the subject-matter, that is the right to the possession of the lost United States Gold Certificates. Art. 14, Sec. 1624, R. S. of Missouri, 1929; Armory v. Delamire, (S. L. C., Vol. L, p. 636 (1 Strange 504)); Foster v. Fidelity Safe Deposit Co., 174 S.W. 376. (b) Lear B. Reed, answering in relator's replevin suit in record page selected his forum under the law and should not be allowed any relief in another and different cause of action by this respondent namely, Bonded Wrecking and Lumber Company, a corporation, v. Joseph Johnson and others, No. ---. Holland v. Depriest, 65 Mo.App. 333; Foster v. Fidelity Safe Deposit Co., 174 S.W. 376; Hoagland v. Highland Park Amusement Co., 170 Mo. 335. (c) One court of record of equal jurisdiction cannot restrain or enjoin or stay the proceedings of another court of the same and equal jurisdiction. Carthage Nat. Bank v. Poole, 141 S.W. 469; Pettus, Administrator, v. Elgin, 11 Mo. 411; Mellier v. Bartlett, 89 Mo. 137; Gilbert v. Renner, 95 Mo. 151; Green v. Tittman, 124 Mo. 38. (3) The defendant, Lear B. Reed, was not entitled under the law to any equitable relief by the respondent for the reason of his actions and conduct in the replevin suit, No. 468722, and for the further reason that the defendant, Lear B. Reed, did not come into the equity court in case No. 468828 with clean hands and it is the maxim of equity that "He that comes into equity must come with clean hands." 21 C. J., page 170, par. 163C; Tehlig v. Busch, 165 Mo. 147; Car v. Woods, 177 S.W. 623; Weritheirme Swartz Shoe Co. v. Wylie, 261 Mo. 615; Avery v. Central Bank, 221 Mo. 71, 119 S.W. 1106; Derry v. Fielder, 216 Mo. 176, 115 S.W. 412; Seibel v. Higham, 216 Mo. 121, 115 S.W. 987, 129 Am. St. Rep. 502; Mountain Grove Creamery, etc., Co. v. Willow Springs Creamery Co. (Mo. App.), 202 S.W. 1054; Primm v. White, 162 Mo.App. 594, 142 S.W. 802; Little v. Cunningham, 116 Mo.App. 545, 92 S.W. 734.

Harold A. Lockhart, Calvin & Kimbrell and Woodruff & Gard for respondent.

(1) The circuit court has jurisdiction to proceed in the equity interpleader suit and to determine the issues there raised as to title and ownership of the gold certificates. 21 C. J. Equity, sec. 48, pp. 71-72; Atkinson v. Carter, 101 Mo.App. 477, 74 S.W. 502; Smith v. Grand Lodge, A. O. U. W. of Missouri, 124 Mo.App. 181, 101 S.W. 662; Phillips v. Alford et al. (Mo. App.), 90 S.W.2d 1060, 1070. (2) The circuit court had the jurisdiction and right in its discretion to stay proceedings in the replevin suit until the issues in the equity interpleader suit were determined. 1 C. J. S. Actions, sec. 133 (3); 1 C. J. Actions, sec. 422, p. 1164; Davidson v. Hough, Judge, et al., 165 Mo. 561, 65 S.W. 731; Terry v. Hague, 308 Mo. 230, 251 S.W. 77, 79; State ex rel. Gabbert v. Lucas, Circuit Judge, et al., 295 Mo. 538, 246 S.W. 208; Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163. (3) If the object sought by relator is to obtain relief from the effect of the order staying the replevin action, prohibition is not the proper remedy. State ex rel. v. Ellison, 276 Mo. 642, 208 S.W. 439; 50 C. J. Prohibition, 684. (4) Relator alleged in his application for a writ of prohibition that the stay order was made and entered without notice to him, that said order was not based upon any pleading in the cause and that said order was not made upon the request of any party to the cause. These allegations are not supported by the record. In fact, the record shows affirmatively that the stay order was made upon the application of Lear R. Reed, a defendant; was based upon the verified answer and Bill of Interpleader of said Lear B. Reed and that relator's counsel was present and participated in the proceedings in which the order was made. State ex rel. C., R. I. & P. Ry. Co. v. Woods, 316 Mo. 1032, 292 S.W. 1035. (5) Relator did not file a motion before the Honorable Paul A. Buzard, respondent herein, to dissolve or vacate the stay order made and entered on the 9th day of February, 1940, and the lack or excess of jurisdiction is not apparent on the face of the record. Under these facts, prohibition will not lie. State ex rel. Fenn v. Riley, 127 Mo.App. 469, 105 S.W. 696; State ex rel. American Lead & Baryta Company v. Dearing, 184 Mo. 647, 84 S.W. 21; State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303; State ex rel. K. C. Exchange Co. v. Harris, 229 Mo.App. 721, 81 S.W.2d 632. (6) Respondent's motion for judgment on the pleadings in favor of the respondent and against the relator and to quash the preliminary writ of prohibition issued herein should be sustained.

CAMPBELL, C. Sperry, C., concurs.

OPINION

Original Proceeding in Prohibition.

CAMPBELL C.

The relator, as plaintiff, on December 22, 1939, brought suit in replevin in the Circuit Court of Jackson County against Edgar Shook, Russell Greiner, George Fiske, Milton Schweiger, Bryce B. Smith, Police Commissioners of Kansas City, L. B. Reed, Chief of Police, and sergeant Ira Johnson, to recover possession of "$ 12,700 in legal money of the United States." The defendants in the action answered by way of a general denial on January 11, 1940.

Bonded Wrecking & Lumber Company on December 28, 1939, brought suit in the Circuit Court of Jackson County against Joseph Johnson, Emmitt J. Scott, L. B. Reed, chief of police, and others in which it alleged it was a corporation engaged in the business of wrecking and salvaging old buildings in Kansas City; that in November, 1939, it purchased a residence building in Kansas City and proceeded to remove said building and its contents; that it employed defendant Johnson as a common laborer in removing said building; that while said work was in progress a part of a wall of said building fell, "revealing a metal box which was come upon by said defendant, Johnson, while cleaning mortar from bricks of said building, and which said box had been voluntarily placed in said building and wall for safekeeping, and which said box, on being opened by said Johnson, was found to contain certain money, gold paper certificates and valuables, which said gold certificates, money and valuables were carried off or away from said building by said Johnson, and thereafter caused to be turned over by said Johnson and others associated with him . . .;" that the gold certificate thus taken by Johnson was of the value of $ 12,700. The petition further alleged the metal box was placed in the wall of said building for safe keeping by some person to plaintiff unknown; that it was the owner of said box and the contents thereof; that each defendant (except Reed) claimed some right or interest in the certificates and prayed the respective rights of the parties in and to the certificates be ascertained and determined. Other allegations are not of consequence.

The defendant, Reed, filed separate answer and "Bill of Interpleader," in which he alleged he was in possession of the certificates described in plaintiff's petition. Paragraph 2 of the answer follows:

"On information and belief this defendant avers that Joseph Johnson, on or about December . . . ., 1939, found said gold certificates in a metal box which he came upon while tearing down a certain brick residence building at 717 Tracy Avenue in Kansas City, Missouri; that the plaintiff herein, Bonded Wrecking & Lumber Company, was the employer of said Joseph Johnson; that Louis H. Wyatt, now deceased, at one time lived in and owned said residence and was the owner of said residence at the time of his death; that Charles A Wyatt is the administrator of the estate of Louis H. Wyatt, deceased; that all the defendants in this action save Johnson, Scott, Pouncey, Knox, said administrator and this defendant claim to be heirs at law of said Louis H. Wyatt, deceased. On information and belief this defendant avers that said Johnson claims title and interest in said certificates by reason of finding the same; that said Scott claims interest in said certificates by reason of a claimed power of attorney and assignment from said Johnson; that if the defendants Pouncey and Knox have any claim in or to said certificates this defendant is not informed as to the nature thereof except that said defendants Pouncey and Knox are attorneys of record for said defendant Scott; that defendant Charles A. Wyatt, administrator,...