State ex rel. St. Louis and Kirkwood Railroad Company v. Hirzel

• Decision Date: 09 February 1897
• Parties: The State ex rel. the St. Louis and Kirkwood Railroad Company et al. v. Hirzel, Judge, et al
• Court: Missouri Supreme Court

37 S.W. 921

137 Mo. 435

The State ex rel. the St. Louis and Kirkwood Railroad Company et al. v. Hirzel, Judge, et al

Supreme Court of Missouri

February 9, 1897

Rehearing Denied 137 Mo. 435 at 449.

Rule made absolute.

M. R Smith and Edward Hidden for relator.

(1) By the state constitution this court is vested with a general superintending control over all inferior courts with the power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same. State constitution, art. 2 sec. 3; State ex rel. v. Ross, 122 Mo. 164; State v. Mead, 36 Mo. 232; 8 Bacon's Abr., p 266. That this court has the power to superintend the powers of inferior courts as to matters of their jurisdiction we assume will not be disputed. (2) Prohibition is the proper remedy to correct the acts of an inferior court, whether done by such court in vacation or term time, when such acts constitute an abuse or are in excess of this jurisdiction and power as a judge or a court. Railroad v. Wear, 36 S.W. 364; State ex rel. v. Court of Appeals, 99 Mo. 221; 8 Bacon's Abr., 221 (H); London v. Cox, L. R. 2 H. L., 279; Works on Jurisdiction and Courts (1894), p. 628, note 3; High on Extra. Rem. [3 Ed.], secs. 762 and 764a; Appo v. People, 20 N.Y. 531; Ex parte Braulacht, 2 Hill (N. Y.), 368. (3) Prohibition may be granted to prevent a "violation of some fundamental principle of justice or the transgression of the bounds prescribed by law." People ex rel. v. Nichols, 79 N.Y. 592; State ex rel. v. Kirkland, 41 S.C. 35; Hudson v. Sup. Court, 42 Mich. 248; West v. Ferguson, 16 Gratt. 270. (4) Prohibition is the appropriate remedy, pending an appeal from an inferior to a superior court, to prevent the former from exceeding its jurisdiction by attempting to execute the judgment appealed from. State v. Judge, 21 La. Ann. 735; State v. Judge, 24 La. Ann. 598. (5) Thus, it lies to restrain the execution of an order of seizure and sale of property, under a judgment from which an appeal has been taken, which is still undetermined in the appellate court. State v. Judge, supra; High on Extraordinary Legal Remedies, sec. 789, p. 572. (6) The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly to the exercise of those powers with which it had been by law intrusted. Appo v. People, 20 N.Y. 531; High on Extraordinary Leg. Rem., p. 550. (7) The act of April 11, 1895, must be construed in connection with, and as a part of the general statutes regulating appeals in this state. Railroad v. Wear, 36 S.W. Rep., p. 364. (8) Statutes must be construed with reference to the whole system of which they form a part. St. Louis v. Howard, 119 Mo. 45; State ex rel. v. Klein, 116 Mo. 264-267; State ex rel. v. Woodson, 128 Mo. 516. (9) This amendment providing for an appeal from an order, refusing to revoke, etc., an order appointing a receiver should receive a liberal and effective construction, so that when an appeal is perfected, the general statutes regulating appeals should apply in all their intended force, so as to effect the purposes thereof. Railroad v. Merriam, 36 S.W. 630; Railroad v. Wear, 36 S.W. 364. (10) The affidavit for an appeal having been filed immediately after the overruling of the motion to revoke, etc., the order appointing receiver, and the presentation of the bond with approved sureties present, ready to sign same, with a request for judge to fix the amount, so that it should operate as a supersedeas, was doing all that defendants could do, and in contemplation of law constituted a perfect appeal, so much so as to render all orders of the judge thereafter ineffective, because made without jurisdiction. State ex rel. v. Dillon, 98 Mo. 90-93; Railroad v. Evans, etc., Brick Co., 85 Mo. 322; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Dillon, 96 Mo. 61; State ex rel. v. Woodson, 128 Mo. 521; Amer. Brewing Co. v. Talbot, 125 Mo. 391; Lewis v. Railroad, 59 Mo. 503; State ex rel. v. Ransom, 86 Mo. 332; Riehle v. Henlings, 38 N.J.Eq. 84; Elliott's Pract. (Appellate), sec. 541, note 1, and 542, note 2; Thormly v. Mahoney, 24 Cal. 569; 1 Black on Judgments, sec. 243; Cook v. Coal, 55 Iowa 73; High on Receivers [3 Ed.], sec. 130, p. 119. (11) A supersedeas follows ipso facto on the performance of the statutory requirements. Hanna v. Pittman, 25 Ark. 275; Born v. Horstmann, 80 Cal. 452; Carter v. Bennett, 5 Fla. 92; In re Branch Tp. Road, 4 Leg. Gaz. (Pa.) 413; 24 Am. and Eng. Ency. Law, p. 586, note (5), and p. 589, note (1). (12) The bill failing to allege that all legal remedies had been exhausted, failed to confer jurisdiction authorizing the appointment of a receiver, and an order made for that purpose was and is void. Merriam v. Railroad, 122 Mo. 435.

Dawson & Garvin for respondents.

(1) Prohibition will not lie to restrain the judge from exercising his jurisdiction over the subject-matter and persons to be affected. State ex rel. v. Burckhartt, 87 Mo. 533; State ex rel. v. Smith, 104 Mo. 423; State ex rel. v. Railroad, 100 Mo. 59; American Casualty Co. v. Lea, 56 Ark. 543; State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Klein, 116 Mo. 259; Goldsmith v. Owen, 95 Ky. 420; High, Ex. L. Rem., sec. 767a. (2) A single creditor can file a creditor's bill, and unless other creditors voluntarily come in and join in the proceeding the creditor suing will be entitled to the fruits of his victory. Williams v. Jones, 23 Mo.App. 132; Heiman v. Fisher, 11 Mo.App. 275; Beach on Receiver, (1887), sec. 612, p. 549. (3) It is not the office of prohibition to correct the informality of the receiver's proceeding with respect to bond, or affidavit, or inventory. High on Receivers [3 Ed.], secs. 99, 122; Shulte v. Hoffman, 18 Tex. 678; Bank v. Cooper, 54 Me. 438; Ex parte Braudlacht, 2 Hill (N. Y.), 368. (4) The extraordinary writ of prohibition can not be brought into requisition as a speedy substitute for an appeal or writ of error. State ex rel. v. Scarritt, 128 Mo. 340; State ex rel. v. Ross, 122 Mo. 462; State ex rel. v. Walbridge, 123 Mo. 533; In re N. Y., etc., v. Steamship Co., 155 U.S. 523; Wardell v. Railroad, 103 U.S. 658; Wilson v. Berkstresser, 45 Mo. 283; Ex parte Ellyson, 20 Grat.t 10; High's Extr. L. Rem. [3 Ed.], secs. 763-767; Grigg v. Dalsheimer, 88 Va. 508; State v. Cole, 33 La. Ann. 1356; Epperson v. Rice, 102 Ala. 668; Porter v. Sabin, 149 U.S. 473; State ex rel. v. Court of Appeals, 99 Mo. 222-224. (5) Section 2249, Revised Statutes, Missouri, respecting stay of execution, relates solely to bonds being given when appeals are taken from a final judgment under section 2246, to some appellate court. State ex rel. v. Walbridge, 123 Mo. 536; State ex rel. v. Woodson, 128 Mo. 497; State ex rel. v. Lewis, 76 Mo. 379; State ex rel. v. Dillon, 96 Mo. 61. The appeal in this case being taken after the receiver was in full possession does not oust him of possession, whether after the appeal taken he is to get his orders from the court appointing him or from the supreme court pending this appeal. Farmers' Loan & Trust Co., 129 U.S. 206; Hovey v. McDonald, 109 U.S. 156; State ex rel. v. Dillon, 96 Mo. 62; High on Receivers [3 Ed.], sec. 15; Ferguson v. Dent, 29 F. 9; Elliott's Appellate Procedure, secs. 391, 392; Graves v. Maguire, 6 Paige's Ch. 381, 382; Riehle v. Henlings, 38 N.J.Eq. 84. (7) The receiver being in possession before the motion to vacate was considered, the decree of August 27, 1896, was fully executed and the order of August 29, 1896, refusing to vacate this decree, which is herein appealed from, is self-executing, and the appeal has no supersedeas effect, except, perhaps, as to costs. Elliott's Appellate Procedure, pages 391, 392, and cases cited; Swing v. Townsend, 24 Ohio St. 1; Hutton v. Lockridge, 27 W.Va. 428; State ex rel. v. Woodson, 128 Mo. 518; State ex rel. v. Dillon, 96 Mo. 61; Hovey v. McDonald, 109 U.S. 160; Schenk v. Peay, 1 Dill. 267; High on Receivers [3 Ed.], secs. 15, 161. A preliminary receivership is, in effect, an injunction. Edwards on Receivers, 13, and cases supra. (8) The real complaint of relators is that Judge Hirzel refused to grant them a supersedeas order and keep the receiver out of the possession until by appeal they should take this branch of the case out of his jurisdiction. Judge Hirzel, in the exercise of his judicial discretion, refused under all the facts in the case to make this order as he had a right to do. State ex rel. v. Court of Appeals, 99 Mo. 216; Robinson v. Ross, 40 Ga. 375; Cohen v. Garnett, 42 Ga. 46; High on Receivers [3 Ed.], sec. 25, p. 27; State ex rel. v. Chase, 41 Ind. 356; Walls v. Palmer, 64 Ind. 496; Hovey v. McDonald, 109 U.S. 160; High's Extr. L. Rem. [3 Ed.], sec. 168; Elliott, Appellate Proc., secs. 726, 399; Works on Courts and Their Jur., p. 635.

Barclay, J. Brace, C. J., and Gantt, Macfarlane, Sherwood, Burgess, and Robinson, JJ., concur.

OPINION

In Banc.

Prohibition.

Barclay J.

This is an original proceeding to obtain a prohibition against Judge Hirzel, as circuit judge of St. Louis county. The plaintiffs are the same parties who are defendants in the case of Mrs Spencer and her husband against them, in the circuit court of the said county. The demand for a prohibition is founded upon proceedings in the Spencer case. The petition therein may be shortly described as a creditors' bill against the St. Louis and Kirkwood railroad company, the Scenic railroad company, and Mr. Houseman. One of its features is a prayer for a temporary receiver to...