State ex rel. Sullivan v. Reynolds

• Decision Date: 27 January 1908
• Citation: 107 S.W. 487,209 Mo. 161
• Parties: THE STATE ex rel. WILLIAM B. SULLIVAN et al. v. REYNOLDS, Judge
• Court: Missouri Supreme Court

107 S.W. 487

209 Mo. 161

THE STATE ex rel. WILLIAM B. SULLIVAN et al. v. REYNOLDS, Judge

Supreme Court of Missouri

January 27, 1908

Peremptory writ awarded.

Thos C. Hennings and Robt. F. Walker for relators.

(1) This is a proper case for prohibition; the object of the writ being to restrain respondent, as judge of a circuit court from further proceeding therein for want of jurisdiction, in the court, to entertain and try the cause; and the writ will issue equally where the inferior court exceeds or undertakes to exceed its jurisdiction in a cause of which it may take cognizance, no less than in cases where it has no jurisdiction whatever. Morris v. Lenox, 8 Mo. 252; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Withrow, 133 Mo. 500; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Scarritt, 128 Mo. 331; High on Ex. Leg. Rem., sec. 789; Spelling on Ex. Relief, sec 1741. (2) The petition for the writ was filed in time. State ex rel. v. Rombauer, 105 Mo. 103; State v. Elkin, 130 Mo. 90; 16 Ency. Pl. and Pr., 1133. (3) The appearance of relator in the proceedings sought to be stayed by the writ, by filing his return to the order to show cause, did not operate to waive the lack of jurisdiction. R. S. 1899, sec. 602; Baker v. Railroad, 36 Mo. 543; Bray v. Marshall, 66 Mo. 122; Kinealy v. Stead, 55 Mo.App. 182; Christian v. Williamson, 35 Mo.App. 297. (4) Respondent cannot entertain jurisdiction of the proceeding sought to be stayed because, although the case falls within a class of cases (i. e., receivership proceedings) of which his court may take cognizance, the subject-matter of the suit (i. e., the res, the property of relator) was already, when the proceeding was instituted, and still is, in the custody, possession and under the control of another court of competent and concurrent jurisdiction, the circuit court of St. Louis county, through its officer, the receiver duly appointed. Mishawaka Woolen Mfg. Co. v. Powell, 98 Mo.App. 530; McFarlan Carriage Co. v. Wells, 99 Mo.App. 641; Green v. Tittman, 124 Mo. 372; Railroad v. Sweet, 10 Mo.App. 276. The property being held by the receiver as such, is held under judicial process, and cannot be taken under other process of another court. Bank v. Owen, 79 Mo. 429; Metzner v. Graham, 57 Mo. 404; Colburn v. Yantis, 176 Mo. 670; Hudson v. Lamar, 74 Mo.App. 238; Bredell v. Fair Grounds, 95 Mo.App. 676. (5) The property being in the custody of the circuit court of St. Louis county, through its receiver, no one, not even one claiming under title paramount to any of the parties litigant, will be allowed to interfere with the property, even by judicial process; but all claimants thereto will be required to submit their claims to that court for adjudication and abide its determination with reference to the disposition of the property. Metzner v. Graham, 57 Mo. 404; Turner v. Railroad, 74 Mo. 602; Heath v. Railroad, 83 Mo. 617; Colburn v. Yantis, 176 Mo. 670; Luley v. Schulenberg, 13 Mo.App. 595; State v. Netterton, 26 Mo.App. 414; Wade v. Ringo, 62 Mo.App. 414; Bank v. Bank, 136 U.S. 236; Railroad v. Humphreys, 145 U.S. 97; Kerr on Receivers (2 Am. Ed.), chap. 6; Bispham's Principles of Equity, secs. 579, 580. (6) Actual possession of property in controversy is not necessary to confer complete power on a court of competent jurisdiction, to exercise its authority in determining and finally disposing of the case before it, to the exclusion of any other tribunal. Bank v. Stephens, 169 U.S. 432; Adams v. Trust Co., 15 C. C. A. 1; Deming v. Marble Co., 12 Abb. Prac. 66.

Claud D. Hall for respondent.

(1) When defendant Sullivan appeared and filed his "return to restraining order and answer," he waived the question of jurisdiction. Bankers' Life Association v. Shelton, 84 Mo.App. 630. (2) The fact that the suit of Wehrs v. Sullivan was pending in the circuit court of St. Louis county and is pending on appeal in this court, does not authorize the restraining of this suit by prohibition. In re Alix, 166 U.S. 136; Roper v. Cady, 4 Mo.App. 593; State ex rel. v. Withrow, 108 Mo. 1. (3) Relator should have sought his redress in the circuit court of the city of St. Louis. 23 Am. and Eng. Ency. Law (2 Ed.), 213 and note; State ex rel. v. Gill, 137 Mo. 681; State ex rel. v. Laughlin, 9 Mo.App. 486; Barnes v. Gottschalk, 3 Mo.App. 111. (4) A writ of prohibition will not lie while the preliminary objection in the inferior court remains undetermined. The reason is that it cannot be assumed that the lower court will pronounce an erroneous judgment. Bankers' Life Association v. Shelton, 84 Mo.App. 634; Schubach v. McDonald, 179 Mo. 183; 23 Am. and Eng. Ency. Law (2 Ed.), 214 and note; State ex rel. v. Scarritt, 128 Mo. 338; State ex rel. v. Sale, 188 Mo. 495; State ex rel. v. Stobie, 194 Mo. 50; Railroad v. Sweet, 103 Mo.App. 280; Eckerle v. Wood, 95 Mo.App. 386; Coleman v. Dalton, 71 Mo.App. 24. (5) If the facts set forth in the petition authorize the court to take any action whatever, prohibition will not lie. State v. District Court, 56 P. 224; State ex rel. v. Wood, 155 Mo. 470; Schubach v. McDonald, 179 Mo. 182; Forsee v. Gates, 89 Mo.App. 584; State ex rel. v. Burckhart, 87 Mo. 538. (6) Writ of prohibition will not be used to serve the purpose of a writ of error, or an appeal, especially when these remedies are adequate. Eckerle v. Wood, 95 Mo.App. 386; State ex rel. v. Ross, 136 Mo. 259; Bankers' Life v. Shelton, 84 Mo.App. 634; State ex rel. v. Scarritt, 128 Mo. 338; State ex rel. v. Evans, 182 Mo. 641. (7) If the court has authority over that class of cases, prohibition will not lie. Eckerle v. Wood, 95 Mo.App. 386; Murphy v. Superior Court, 84 Cal. 310; Coleman v. Dalton, 71 Mo.App. 14; Talboy, C. & Co. v. Dist. Court, 33 Colo. 441; People v. Dist. Court, 29 Colo. 1; State v. Neal, 30 Wash. 702; State ex rel. v. Ross, 136 Mo. 259. (8) The pendency of the suit of Wehrs v. Sullivan does not prevent respondent judge from proceeding with the suit restrained by the rule of prohibition herein. State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Ross, 136 Mo. 259; Rodney v. Gibbs, 184 Mo. 1; Smith v. Lathrop, 84 Am. Dec. 453; Liggett v. Glenn, 51 F. 389. (9) The assets in the hands of Watkins, after the appeal was taken and supersedeas bond given and approved, and the order made to restore the assets to the defendant Sullivan, were subject to seizure, and not in custodia legis. Very v. Watkins, 23 How. 469; High on Receivers, sec. 162; Andrews v. Smith, 5 F. 833; U. S. v. Towns, 7 Ben. Dist. Rep. 444; Shinn on Attachments, secs. 304, 326; Buck v. Colbath, 3 Wall. 334; Halliday Case, 27 F. 838; State ex rel. v. Hirzell, 137 Mo. 435, and the following cases cited in that opinion, namely: Everett v. State, 28 Md. 205; Ins. Co. v. Hotel Co., 37 Wis. 580; Buckley v. George, 71 Miss. 580; State ex rel. v. Superior Court, 12 Wash. 677; Shields v. Coleman, 157 U.S. 168; Mohrs v. Langan, 162 Mo. 474; Pomeroy, Eq. Rem., 327-328; Alderson, Beach on Receivers, 26 and 131; People's Cemetery Assn. v. Oakland Cem. Co., 60 S.W. 679; McPike v. Wells, 54 Miss. 136, in which all the cases are cited and explained; Algrem et al. v. Sullivan et al., decided by U. S. Circuit Court, 8th Circuit, Eastern District of Missouri, July 3, 1907.

OPINION

In Banc.

Prohibition.

WOODSON J.

-- This is an original proceeding instituted in this court, seeking to prohibit the respondent, as judge of the circuit court of the city of St. Louis, from taking and further exercising jurisdiction over the parties to, and the subject-matter involved in, the case of Louis F. Algrem et al. vs. William B. Sullivan et al., pending in the circuit court of said city.

The facts in the case are not disputed, and are substantially as follows, as disclosed by the petition for the preliminary writ and the return thereto of the respondent, to-wit:

At the May term, 1905, of the circuit court of St. Louis county, Missouri, one Herman H. Wehrs filed a petition in said court against William B. Sullivan, doing business as the Home Cooperative Company, asking an injunction and the appointment of a receiver for the assets of said William B. Sullivan, doing business as aforesaid. A receiver, Francis A. Tillman, was appointed, gave bond, took charge of the property of said company, and begun to administer and settle its business. At the September term, 1905, the said circuit court entered a final judgment in said cause, making the injunction permanent and confirming the appointment of the receiver, Tillman.

At the subsequent term of said circuit court an order was entered of record requiring said William B. Sullivan and the contract-holders and creditors of said Home Cooperative Company for which Tillman had been appointed receiver, to appear before the court on April 7, 1906, and show cause why the judgment or decree in said cause making the injunction permanent and confirming the appointing of Tillman as receiver of said company should not be vacated and set aside. On April 7, 1906, the order to show cause was continued until April 11, 1906; on this day one William L. Watkins, Supervisor of Building & Loan Associations of the State of Missouri, filed what he termed an interplea, asking the court to vacate and set aside the judgment or decree heretofore rendered in this cause, to remove Tillman as receiver and to appoint him, Watkins, as receiver under the alleged authority of a statute of Missouri, approved April 21, 1903. [Laws 1903, pp. 110-113.]

The court at a subsequent term (April 21, 1906) made an order setting aside and vacating its judgment and decree entered at a former term confirming the appointment of said Tillman as receiver, removed the latter, and...