State of Missouri, ex rel. v. Maughmer, Judge
| Citation | 214 S.W.2d 754 |
| Decision Date | 08 November 1948 |
| Docket Number | No. 21151.,21151. |
| Parties | STATE OF MISSOURI, EX REL., MARY STRATTON AND LEONARD JACKS, RELATORS, v. FRED M. MAUGHMER, JUDGE, ET AL., RESPONDENTS. |
| Court | Court of Appeal of Missouri (US) |
PRELIMINARY WRIT QUASHED, WRIT DENIED.
Wilson D. Hill and Harry A. Hall for relators.
Respondent was without jurisdiction in the injunction suit since the entire cause of action was vested in the pending condemnation suit which had been filed first. State ex rel. Fromme v. Harris, 194 S.W. 2d 932; Finley v. Smith, 178 S.W. 2d 326; State ex rel. Nicholson v. McLaughlin, 170 S.W. 2d 705; Julian v. Commercial Assurance Company, 279 S.W. 2d 740.
W.A. Franken and Lawson, Hale & Coleberd for respondents.
(1) Upon payment of the amount of the award of the commissioners in the condemnation suit, the Norborne Land Drainage District was entitled to possession and to proceed with the construction of its levee. Sec. 1508, R.S. Mo., 1939; State v. Oakley, 188 S.W. 2d 820; State ex rel. City of St. Louis v. Sartorius, 102 S.W. 2d 890. (2) The jurisdiction of the Injunction suit was exclusively in the Circuit Court of Ray County, Missouri, since the land and all but one of the parties defendant reside in Ray County, Missouri. Sec. 871, R.S. Mo., 1939; Castleman v. Castleman, 83 S.W. 757, 184 Mo. 432; State ex rel. Hunt v. Grimm, 148 S.W. 868, 243 Mo. 667; State ex rel. Delmar Jockey Club v. Zachritch, 65 S.W. 999, 166 Mo. 307; State ex rel. Shiek v. McElhinney, 176 S.W. 292, 190 Mo. App. 618. (3) The title and the right to the possession of the three strips of land condemned had already vested in the district. State v. Oakley, 188 S.W. 2d 820; State ex rel. City of St. Louis v. Sartorius, 102 S. W. 2d 890. (4) The cause of action in the Injunction Suit and the remedy sought are entirely different from the cause of action and relief sought in the Condemnation Suit. 21 C.J.S., p. 751; Kimpton v. Spellman, 173 S.W. 2d 886, 351 Mo. 674. (5) The filing of the Commissioners' Report and the payment of the damages into court is equivalent to a judgment of possession. State v. Oakley, 188 S.W. 2d 820; State ex rel. City of St. Louis v. Sartorius, 102 S.W. 2d 890; K.C. Suburban Belt R'y Co. v. K.C., St. L. and C. R'y Co., 118 Mo. 599. (6) A drainage district is a public corporation entitled to such protection. Graves v. Little Tarkio Drainage District No. 1, 134 S.W. 2d 70; Eaton v. Milbourne et al., 135 S.W. 2d 387; Special Road District No. 2 of Bolinger County v. Stepp, 222 Mo. App. 1216; State v. Zachritz, 166 Mo. 307; State ex rel. v. Fietz, 174 Mo. App. 456. (7) The rule requiring a judgment of a court of law before equity will act has no application. 32 C.J. 122; 43 C.J.S. 517. (8) The defendant would not be entitled to trial by jury. No question could arise in connection with the title, subject to trial by jury. K.C. Suburban Belt R'y Co. v. K.C., St. L. and C. R'y Co., 118 Mo. 599. (9) The granting of a Writ of Prohibition lies within the sound discretion of the court. 50 C.J. 656, l.c. 658; State v. Montgomery, 316 Mo. 658, 291 S.W. 472.
This is an original action to prohibit respondent judge from proceeding in a suit to enjoin relators from interfering with a certain levee construction by a drainage district on certain lands, which construction the respondents claim has been adjudicated in a prior condemnation suit still pending, and further to prohibit the District from taking such possession and proceeding with said construction. Our preliminary writ was issued.
From the pleadings we gather the following facts:
The Norborne Land Drainage District Company of Carroll County, Missouri, a corporation (hereinafter called the District), was organized in the Circuit Court of Carroll County in 1917, under what is now Article 1, Chapter 79, R.S. Mo., 1939. Part of the west boundary of the Drainage District then established was the east boundary of the lands in Ray County described in relators' petition herein. Some time thereafter the Plan of Reclamation was changed and a levee was completed thereunder, part of which ran along a road which was the east boundary of the lands described in relators' petition herein, 30 feet of which was outside of the district line and abutted relators' said lands. On account of alleged change in flood conditions the District later determined to raise and widen that part of the levee along said road, necessitating the taking of a strip of the relators' said lands. Authority to change the plan for this purpose was denied the District in 1945 by the Carroll County Circuit Court. The change was, nevertheless, undertaken by an independent condemnation suit in Ray County, and relators contend that the change is in fact not a modification of the original plan, but actually a new levee partly on lands of the relators outside the district, and would be dangerous to the community, and is unauthorized.
The District, on October 15, 1947, filed an independent condemnation suit in the Circuit Court of Ray County to condemn the strip of relators' said lands for the alleged purpose of raising and widening the levee. Due notice was given under the statutes of the proceeding and date when the appointment of commissioners would be applied for. On that date the relators appeared and filed a motion to dismiss the proceeding as void and unauthorized for the reasons above stated. The court indicated its intention of overruling the motion, but withheld its ruling until relators could apply to the Supreme Court for prohibition. Upon such application the Supreme Court, on or about January 30, 1948, denied the application for prohibition without opinion. Thereafter on February 5, 1948, the court appointed commissioners in the condemnation suit, who, on February 17, 1948, filed their report, fixing the damages to relators at the aggregate sum of $5,325. Prior to April 1, 1948, the District paid this sum to the clerk of the Circuit Court of Ray County. On February 23, 1948, relators filed their answers to the petition for condemnation, setting forth the contentions aforesaid. They also asked therein for an injunction to prevent the District from taking possession. Upon application of the District, a change of venue was granted to the Circuit Court of Clay County, Missouri, where the condemnation suit is still pending.
Thereupon the District, through its agents and servants, undertook to enter upon and begin construction on said lands and was met with threats of violence on the part of the relators, who denied the right of the District to go on the property or to begin construction.
On May 4, 1948, the District filed suit for injunction in the Circuit Court of Ray County, Missouri, to enjoin relators from obstructing or interfering with the construction and maintenance of the levee on said lands by the District. That court issued its restraining order to that effect, whereupon relators made the present application in this court for prohibition, as stated.
Relators' single point of contention is that respondent judge was without jurisdiction in the injunction suit "since the entire cause of action was vested in the pending condemnation suit which had been filed first".
In this connection they assert that two suits are now pending between the same parties, involving the same issues, to-wit, the condemnation suit filed first and still pending, wherein relators have put in issue the right of the District to condemn the lands in question for the purposes pleaded, and the subsequent injunction suit to prevent relators from interfering with the use and possession of relators' lands by the District. They refer to the general law on such conflicts and quote from State ex rel. Fromme v. Harris, 194 S.W. 2d 932, as follows:
"It is well settled that, where two actions involving the same subject are brought between the same parties to test the same right in different courts having concurrent jurisdiction thereof, the first court acquiring jurisdiction, if its power is adequate to the administration of complete justice, retains jurisdiction and may dispose of the whole controversy without the interference of any other court or courts of coordinate power".
They also cite to the same effect Finley v. Smith, 178 S.W. 2d 326, and State ex rel. Nicholson v. McLaughlin, 170 S.W. 2d 705.
Respondents contend that (1) upon the payment of damages assessed by the commissioners, the District was entitled to possession and to proceed with the construction of the levee; (2) that the injunction was properly brought in Ray County since the lands involved and all of the defendants except one resided in Ray County; (3) that the title to the said lands had already vested in the District; (4) that the two suits are different in their causes of action and in remedies sought; (5) that no adequate relief against threats, violence, and intimidation by relators could be obtained in the condemnation suit; (6) that payment of the assessed damages was equivalent to a judgment...
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