State ex rel. St. Louis Amusement Co. v. Rosskopf
| Decision Date | 07 July 1932 |
| Parties | State of Missouri at the Relation of St. Louis Amusement Company, a Corporation, Relator, v. Henry A. Rosskopf and Albert D. Nortoni, Judges of the Circuit Court of the City of St. Louis |
| Court | Missouri Supreme Court |
Alternative writ quashed.
James A. Reed, James E. Taylor, Bryan, Williams, Cave & McPheeters , and Jeffries, Simpson & Plummer for relator.
(1) The facts relied upon by the relator as authorizing the issuance of a peremptory writ of mandamus are admitted by the pleadings. Pleadings in mandamus are governed by common law rules. (a) The general denial contained in respondents' return is insufficient to controvert the allegations of the alternative writ and petition. State ex rel. v Allison, 155 Mo. 325; State ex rel. v Broaddus, 234 Mo. 331. (b) The denials on information and belief contained in respondents' return do not constitute a sufficient denial of the allegations of the alternative writ and the petition. State ex rel. v Williams, 96 Mo. 13; State ex rel. v. Trammel, 106 Mo. 510. (c) All allegations of the alternative writ and petition not specifically denied by the respondents' return are taken as true. State ex rel. v. Adams, 161 Mo. 349; State ex rel. v. Riley, 219 Mo. 667; State ex rel. v. Gordon, 238 Mo. 168; State ex rel. v. Beyers, 41 Mo.App. 503. (2) The Supreme Court will review the action of the circuit court in fixing the amount of the appeal bond to ascertain if the discretion lodged in the circuit court was reasonably exercised. If it be found that the trial court fixed the bond at an unreasonable amount and refused to approve a proper bond tendered, a peremptory writ of mandamus will be awarded directing the circuit court to approve the bond tendered. State ex rel. McWilliams v. Armstrong, 9 S.W.2d 600; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Dreyer, 183 Mo.App. 463; State ex rel. v. Lewis, 71 Mo. 170; State ex rel. v. Klein, 137 Mo. 673; Johnson v. National Sand & Gravel Co., 170 La. 423, 127 So. 889. (3) The supersedeas bond tendered by relator properly ran in favor of the appellees. The penalty of said bond was sufficient to indemnify the appellees (who were obligees in the bond), in case of appellants' failure to comply with a judgment of affirmance, if rendered. The bond was, therefore, sufficient under the statutes and precedents and should have been approved by the trial court. State ex rel. v. Klein, 137 Mo. 673; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Dillon, 98 Mo. 90; State ex rel. v. Hennings, 194 Mo.App. 545. (4) Since the effect of a supersedeas bond would be merely to restore to the relator its property pending the appeal, and since the amount of the bond tendered was fully adequate to indemnify the parties adverse to the relator against all possible damages they might sustain on account of such temporary restoration of the property to the relator, the bond was sufficient. Bates v. Werries (Mo. Sup.), 196 S.W. 1124; Bowles v. Troll, 262 Mo. 377; In re Wilson's Estate, 8 S.W.2d 973; Joe Dan Market, Inc. v. Wentz, et al., 13 S.W.2d 644.
Leahy, Saunders & Walther and Rassieur, Kammerer & Rassieur for respondents.
(1) The motion for judgment on the pleadings admits the truth of all properly pleaded allegations of fact in the return, so that the case stands on an issue at law on the allegations of fact in said return, together with the allegations of fact in the alternative writ admitted by the return. (2) Mandamus will not lie to control the judicial discretion of a judge of an inferior court in respect to the acceptance and approval of bonds and compel him to approve a bond which he has judicially declared insufficient. State ex rel. Millet v. Field, 37 Mo.App. 83; State ex rel. Jackson v. Howard County Circuit Court, 41 Mo. 247; State ex rel. Heckel et al. v. Klein, 137 Mo. 673; American Well & Prospecting Co. v. Superior Court of Kern County, 19 Cal.App. 497, 126 P. 497; State ex rel. Connor v. St. Louis, 158 Mo. 505; State ex rel. Clark v. West, 272 Mo. 304. (3) (a) The amount of an appeal bond in receivership cases rests within the sound discretion of the trial court. R. S. 1929, sec. 1929. (b) The action of the lower court in refusing to approve the bond tendered by relator, and in fixing the amount of said bond at $ 400,000 was not capricious, arbitrary or oppressive and did not constitute an abuse of judicial discretion. (c) The writ of mandamus is not a writ of right, but is reserved for extraordinary emergencies and goes out only where there is a clear legal right. It is never issued in doubtful cases. High on Extraordinary Legal Remedies (3 Ed.); State ex rel. Crow v. Budge Co., 206 Mo. 134; State ex rel. Gehner v. Thompson, 316 Mo. 1169; State ex rel. Doniphan State Bank v. Harris (Mo. Sup.), 176 S.W. 9; Miltenberger v. St. Louis County Court, 50 Mo. 172; State ex rel. Howser v. Oliver, 116 Mo. 188; State ex rel. Betts v. McGown, 89 Mo. 156.
This is an original proceeding in mandamus to compel the judge of Division 2 of the Circuit Court of the City of St. Louis to approve an appeal bond tendered by relator in connection with its appeal from an order refusing to vacate an interlocutory order appointing a receiver, in the case of Jack Shea et al. v. St. Louis Amusement Company et al., now pending in said division.
Upon defendants' making a return to the alternative writ herein, relator filed a motion for judgment on the pleadings. The return contains admissions, denials and new matter. We take the facts therefore from the allegations of new matter in the return and the allegations of the alternative writ not denied by the return.
The cause above mentioned is a suit in equity. It was instituted by two stockholders of the St. Louis Amusement Company, as plaintiffs, against that corporation and certain individuals, including its officers and directors, as defendants. In the bill it was averred that the suit was brought on behalf of plaintiffs and all other stockholders having like interests. Nine other stockholders intervened. By way of relief the bill asked, among other things, the appointment of a temporary receiver. Upon its filing the court made an order directed to the defendants to show cause why such receiver should not be appointed in accordance with the prayer of the bill. After an extended hearing on the order to show cause, the court found the issues in favor of plaintiffs, appointed two temporary receivers and ordered them, upon giving bond, to take possession of the assets of the defendant corporation. A motion to vacate the order was duly filed and overruled, and defendants allowed an appeal from the order refusing to vacate. Defendants next filed a motion asking the court "to fix the amount of the appeal bond to be given by the defendant St. Louis Amusement Company, to stay the execution of said order appointing said receivers." After a further hearing the court fixed the amount of the bond at the sum of $ 400,000. Defendant Amusement Company tendered a bond for $ 150,000, which the court refused to approve on the sole ground that the penalty of the bond was insufficient. That is the bond which the relator asks that the respondent judge be required to accept as the basis for a stay of execution.
Relator, St. Louis Amusement Company, is a Missouri corporation, having its principal office and place of business in the city of St. Louis. Its assets have an aggregate book value of $ 2,000,000; the corporation's net worth is approximately $ 970,000. Fifty-one per cent of its capital stock is owned by Skouras Bros. Enterprises, Inc., a Delaware corporation, forty-one per cent by Warner Bros. Pictures, Inc., another Delaware corporation, and one and ninety-eight one-hundredths per cent by the plaintiffs and the interveners therein in the case of Shea et al. v. St. Louis Amusement Company, who joined plaintiffs in asking the appointment of a receiver and other relief. Warner Bros. Pictures, Inc., owns ninety-three per cent of the capital stock of Skouras Bros. Enterprises, Inc. The officers and directors of the St. Louis Amusement Company are all officers, agents and employees of Warner Bros. Pictures, Inc., and all of them, with the exception of one director, reside in the city of New York.
In Shea et al. v. St. Louis Amusement Company et al., the bill charged, among other things, and the court, on the hearing of the order to show cause, found: that the defendant directors of the St. Louis Amusement Company have abused their trust as directors; have unlawfully removed the general office of the defendant St. Louis Amusement Company to the city of New York; have been and are unlawfully administering the affairs of the defendant corporation in the interest and in behalf of Warner Bros. Pictures, Inc.; have unlawfully merged the affairs of the defendant corporation into the general organization of Warner Bros. Pictures, Inc., and its ally and subsidiary corporations and interests; have wrongfully shown improper partiality in the administration of the affairs of the defendant corporation to Warner Bros. Pictures, Inc., and Skouras Bros. Enterprises, Inc.; have wasted large sums of money in the payment of salaries of musicians whose services were not needed or used by the defendant corporation; have illegally...
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