State ex rel. Warde v. McQuillin

• Decision Date: 01 December 1914
• Citation: 171 S.W. 72,262 Mo. 256
• Parties: THE STATE ex rel. GEORGE N. WARDE, MATHEW KIELY, THADDEUS STEPHENS, WILLIAM RIPPLE, GRAND AVENUE BANK, and NORTHWESTERN BANK OF ST. LOUIS v. EUGENE McQUILLIN, Judge of Circuit Court, and CHARLES ALBRECHT and J. WALTER STAGE, Members and Trustees of St. Louis Lodge No. 3, Loyal Order of Moose, and ST. LOUIS LODGE NO. 3, LOYAL ORDER OF MOOSE
• Court: Missouri Supreme Court

171 S.W. 72

262 Mo. 256

THE STATE ex rel. GEORGE N. WARDE, MATHEW KIELY, THADDEUS STEPHENS, WILLIAM RIPPLE, GRAND AVENUE BANK, and NORTHWESTERN BANK OF ST. LOUIS v. EUGENE McQUILLIN, Judge of Circuit Court, and CHARLES ALBRECHT and J. WALTER STAGE, Members and Trustees of St. Louis Lodge No. 3, Loyal Order of Moose, and ST. LOUIS LODGE NO. 3, LOYAL ORDER OF MOOSE

Supreme Court of Missouri

December 1, 1914

Writ denied.

O. J Mudd for relators.

(1) The supreme lodge in taking possession of the property of the subordinate lodge through its agents, as it did, was within its rights, was proceeding regularly as prescribed by the laws of the order, and the law of the land will not intervene at this juncture to arrest such possession and give the property back to the subordinate lodge. State ex rel. v Grand Lodge, 8 Mo.App. 154; Colman v. Supreme Lodge, 18 Mo.App. 189; Mulroy v. Knights of Honor, 28 Mo.App. 463; Crutcher v. Order of R. W Cond., 151 Mo.App. 622. (2) Injunction is not the right remedy or a lawful procedure by which to test the right of possession of property, and even if the possession of the Supreme Lodge were wrong or unwarranted by the law of the land, the issuance of the writ in such a case is a usurpation and an invasion of constitutional right of trial by jury. R S. 1909, secs. 2534, 2515, Constitution, Mo., art. 11, sec. 28; 1 High on Injunctions, secs. 360, 699, 715; 22 Cyc. 826, 828-9; Smith v. Jameson, 91 Mo. 13; Owen v. Ford, 49 Mo. 436; Gildersleeve v. Overstolz, 97 Mo.App. 303; Powell v. Canaday, 95 Mo.App. 713; State ex rel. v. Wood, 155 Mo. 445; Boeckler v. Railroad, 10 Mo.App. 448; Carlin v. Wolff, 154 Mo. 539; Davis v. Hartwig, 195 Mo. 380; Brier v. Bank, 225 Mo. 683. (3) Insolvency of a defendant will not convert an action at law into one in equity. 22 Cyc. 838-9. (4) The facts alleged in the petition do not warrant an injunction to restrain defendants from withdrawing funds from the Northwestern Bank. Real Estate Co. v. City, 169 Mo. 234; 22 Cyc. 924-5-6; McKinzie v. Mathews, 59 Mo. 99; Worthington v. Lee, 61 Md. 530; Mallincrodt v. Nemnich, 169 Mo. 388. (5) If on the pleadings the law did not warrant a writ of injunction, the alternative writ of prohibition should be made absolute. State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Wood, 155 Mo. 425.

Milton B. Rosenheim and Jesse L. England for respondents.

(1) The action of the supreme lodge, through relators herein, in declaring a forfeiture of all the property, real and personal, of the respondents, without preferring charges against the local lodge and its members or in any manner giving the local lodge and its members an opportunity to be heard in defense of their property rights, deprived the said local lodge and its members of their property rights without due process of law, and was in plain violation of the Constitution of the State and of the United States. Such action is the embodiment of a legal wrong and will warrant injunctive relief. Austin v. Searing, 16 N.Y. 112; Wicks v. Monihan, 130 N.Y. 237; Turner v. Stewart, 78 Mo. 481; R. S. 1909, sec. 2534; Const. Mo., art. 2, sec. 30; Bauer v. Samson Lodge, 102 Ind. 269. (2) The petition and return set out in relators' application fully show that property rights are involved and that one of the issues made is the right to possession to certain real and personal property, said property being claimed by two factions of a fraternal beneficiary association. Injunction has always been held to be the proper remedy in such cases. High on Injunctions, sec. 305; Fullbright v. Higginbotham, 133 Mo. 676; Prickett v. Wells, 117 Mo. 502; Boyle v. Roberts, 222 Mo. 613; Bacon's Benefit Societies and Life Ins., sec. 68. (3) A court of equity has jurisdiction to prevent repeated and continuous trespass, and this, regardless of whether the trespasser is solvent or insolvent. The petition in this case expressly alleges that the defendants are trespassers on the real property of the plaintiff corporation, and that such trespass is continuous and repeated. Turner v. Stewart, 78 Mo. 481; Sills v. Goodyear, 80 Mo.App. 132; Beach on Injunctions, sec. 1135; State ex rel. v. Gravel Road Co., 116 Mo.App. 175; Hobart Lee Tie Co. v. Stone, 135 Mo.App. 456. (4) If the court nisi had jurisdiction of the class of cases to which the proceedings sought to be prohibited belongs, and acquires jurisdiction of the subject-matter, the mere matter of defects in the petition or complaint by which the proceeding was inaugurated, will not authorize the issuance of a writ of prohibition. Hence the question of whether the petition states a cause of action, as relators contend that it does not, is not a matter to be inquired into by writ of prohibition, but rather by appeal, writ of error or certiorari. State ex rel. v. Stobie, 194 Mo. 52; State ex rel. v. Railroad, 100 Mo. 61; Schubach v. Donald, 179 Mo. 182; High on Extraordinary Rem. (3 Ed.), sec. 767a; State ex rel. v. Lucas, 236 Mo. 18.

LAMM, C. J. Woodson, J., dissents.

OPINION

In Banc

Prohibition.

LAMM C. J.

-- Original proceeding by prohibition.

Defendants in an injunction suit pending in a division (to-wit, respondent McQuillin's of the St. Louis Circuit Court, as relators, apply here by petition on August 14, 1914, for a writ prohibiting that court from proceeding further, and made the plaintiffs in said injunction suit parties respondent with Judge McQuillin. Presently, on that application, a preliminary rule issues in vacation to show cause. Presently, respondents make return showing such cause as they had why our preliminary rule should not be made permanent. Thereupon relators file a motion for judgment on the pleadings. Thereby they insist that the preliminary rule should, as a matter of law, ripen into a permanent writ on the admissions and facts shown by the pleadings. Thereupon (without any evidence on, or determination of, controverted facts) the case is submitted on briefs and oral argument.

Under such circumstances, the motion for judgment on the pleadings is a challenge, in legal effect, to the legal sufficiency of respondents' return. Hence it is from admissions and allegations of that return, we must get the facts, if at all. [State ex rel. v. Shields, Judge, 237 Mo. 329, 333-4.] Attending thereto, the case is this:

In July, 1914, respondents Albrecht and Stage, as members and trustees of St. Louis Lodge No. 3, Loyal Order of Moose joining with them a domestic corporation, designated as "St. Louis Lodge No. 3, Loyal Order of Moose," as plaintiffs, brought suit in the St. Louis Circuit Court against relators in the instant case, to-wit, Warde, Kiely, Stephens, Ripple and the two named banks, the life of the bill being injunctive relief. Verified by affidavit, the substance and theory of the bill were that St. Louis Lodge No. 3, Loyal Order of Moose, hereinafter called "local lodge," is organized under the laws of this State as a domestic corporation having a fraternal, beneficiary character; that as such domestic corporation it owns valuable real estate in the city of St. Louis, improved by a clubhouse and outbuildings, said clubhouse containing billiard, pool, library and lounging rooms, bowling alleys, "and other social features" to be "enjoyed" by the members of said corporation, which latter has a paid up membership of over 2100 souls in good standing, and certain named officers, among them three trustees (to-wit, Albrecht, Stage and Teasdale, the latter refusing to join as plaintiff); that while the title to the real estate is vested in the local lodge, the care, control and custody of the personal property are in the named trustees, who have "sole jurisdiction" to invest the lodge moneys, handle trust funds, pay bills and control the lodge property, the majority of said trustees having power to act. This local lodge had $ 2700 deposited in the two banks, joined below as defendants and here as relators. The "furnishings" in the club house were of the value of $ 7500. We infer that the foregoing bank deposits are covered by the term "surplus money of the lodge" including "sick benefits" and "funeral expense funds," and it was the duty of the said trustees as need called to invest said funds. Having further alleged that the money and personal property aforesaid are the property of the members of the local lodge, the bill goes on to aver that the said domestic corporation, the local lodge, had also received a "charter" from the "Supreme Lodge of the World, Loyal Order of Moose," a voluntary association of persons, authorizing it (said local lodge) to conduct such lodge in accordance with a ritual and form of government adopted by the supreme lodge; that on the 22d day of July, 1914, said supreme lodge, acting through defendant Warde (relator here) summarily, and without just cause or excuse, revoked the charter it had granted the domestic corporation, and thereupon proceeded to confiscate and take possession of its property, declaring the same to be forfeited to the supreme lodge; that thereupon said Warde, himself a non-resident of the State of Missouri, joining with him Stephens, Kiely, Ripple, relators here, and other persons unknown, by trespass wrongfully gained control of the clubhouse and the property of the local lodge, and by continuing their trespass with force and arms without warrant of law are holding possession and are denying to the members of said local lodge access to said premises, and using armed force in that behalf; that said trespassers are insolvent; that two of them, Warde and Stephens, have wrongfully appropriated some of said funds in said banks and are about to appropriate and unless restrained will appropriate the rest of them, so as aforesaid the sole and absolute property of the members of the local lodge. The...