State v. Dearing

• Decision Date: 30 December 1921
• Docket Number: No. 23033.,23033.
• Citation: 236 S.W. 629,291 Mo. 169
• Parties: STATE ex rel. CARON at al. v. DEARING
• Court: Missouri Supreme Court

236 S.W. 629

291 Mo. 169

STATE ex rel. CARON at al. v. DEARING

No. 23033.

Supreme Court of Missouri, in Banc.

December 30, 1921.

James T. Blair, C. J., and Woodson, J., dissenting.

Original proceeding in prohibition by the State, on the relation of Guy W. Caron and others, doing business under the name of the Summit Live Stock Company, against E. M. Dearing, Judge of the Circuit Court of the Twenty-First Judicial Circuit, to prevent the enforcement of a temporary injunction. Preliminary rule made absolute, and temporary injunction ordered set aside.

Atkinson, Rombauer & Hill, of St. Louis, for relators.

James Booth, of Pacific, for respondent

DAVID E. BLAIR, J.

This is an original proceeding in prohibition against respondent, as judge of the Washington county circuit court, to prevent the enforcement of a temporary injunction granted by him against relators and Missouri Pacific Railroad Company. On filing and examination of relator's petition, our preliminary rule issued. Respondent has filed return thereto, and relators have filed their motion for judgment on the pleadings, thereby admitting such facts in the return as are well pleaded.

Relators are doing business at Summit, in Washington county, as Summit Live Stock Company, and are engaged in feeding a large number of hogs with garbage shipped to Summit over the Missouri Pacific Railroad from the city of St. Louis under a contract with said city. The average shipments of garbage amount to 300 tons daily. Relators have a large investment in said hogs. Unless said garbage is promptly removed from said city the health of the inhabitants will be endangered. During the hot months garbage decays and becomes putrid, and will spread disease. Relators are under bond to said city to perform their contract. Said garbage consisted of bread, peelings, dead animals, glass, tin cans, and other soured and decaying vegetable and animal matter. Said garbage caused offensive and injurious odors at relators' hog ranch and in the neighborhood thereof tending to cause disease and pestilence, and otherwise injuriously affected the general welfare of the people of the state, especially those living in the neighborhood of said hog ranch, many of whom own their homes. In other words, under the admitted facts the unloading and feeding of said garbage constitute a public nuisance. Relators contend, and respondent denies, that the place where said garbage is received and fed to hogs is in a very sparsely settled district, and at a place where same is not harmful to any person, and does not injure any of the inhabitants of Washington county. The fact, admitted by relators' motion for judgment, is that "many families, consisting of men, women, and children live and own their homes" in the vicinity of said hog ranch.

Respondent is judge of the circuit court of Washington county. On August 30, 1921, the prosecuting attorney of said county filed in said court his verified petition in the name of the state of Missouri, at his relation, alleging the facts above set out and praying injunctive relief. Notice was served on de-Pendants that a hearing would be held on the petition before respondent on September 1. 1921, and on that date relators appeared and filed a general denial and an application for change of venue. Relators claim that respondent then announced that he would grant a temporary injunction against the defendants named in said petition before sustaining the application for a change of venue if he found he had the power to do so. This is not admitted by respondent, and is not taken as a fact. Respondent admits that he stated that notice had been given as a matter of courtesy, but in his judgment he had the right to grant a temporary injunction without notice. The prosecuting attorney thereupon dismissed the case without objection from relators.

On September 6, 1921, the same being the last day of the August term, 1921, of said circuit court, said prosecuting attorney filed a new petition substantially similar in all respects to the petition filed in the first suit, praying for an injunction restraining defendants from shipping said garbage to Summit and there unloading and feeding same to relators' hogs. On the same day, and without notice to defendants of the pendency of the suit, respondent granted a temporary injunction as prayed. No injunction bond was or could be required of plaintiff. On the same day and after granting such temporary injunction, respondent adjourned his court to court in course, which convened October 1, 1921.

Relators contend that respondent indicated on the occasion of the hearing on the first suit that he had prejudged the case, and in fact stated that if there was any way he could stop defendants he intended to do so. They also contend "that respondent has developed and manifested a strong ill will" toward them, and that he "does not possess the unbiased frame of mind essential to a fair and impartial conduct of the trial of the issues involved in the case." These contentions are denied by respondent.

Upon learning that said temporary injunction had been granted relators sought and obtained issuance of our preliminary rule in prohibition, charging in their petition that the acts of respondent were arbitrary, unjust, and an unreasonable exercise and gross abuse of the powers vested in him by virtue of his office. If further facts appear necessary to a proper understanding of the case. they will be hereafter referred to.

Relators contend that, under the circumstances above detailed, respondent exceeded his jurisdiction when he granted the temporary injunction, without notice to them, and immediately adjourned his court until October 1, 1921. On the other hand, respondent contends that no notice was required, or, if required, the case was one of such emergency as to authorize the granting of the temporary injunction upon the allegations of the petition of the prosecuting attorney without notice to defendants named therein.

Respondent's jurisdiction in vacation and that of his court in term are clearly provided for in section 1947, R. S. 1919. If our preliminary rule be made absolute, it must he on the ground that respondent exceeded his jurisdiction. Citation of authorities to sustain our right by prohibition to prevent inferior judicial tribunals from doing acts in excess of their respective appropriate jurisdictions is scarcely necessary at this late day, and we content ourselves by referring only to St. Louis, etc., Railroad Co. v. Wear, 135 Mo. 230, 36 S. W. 357, 658, 33 L. R. A. 341, on that point.

Of course prohibition may not he employed to fill the office of an appeal. Where a timely and adequate remedy is afforded by appeal, prohibition will be denied. State ex rel. Thrash v. Lamb, 237 Mo. 437, loc. cit. 455, 141 S. W. 665; State ex rel Mueller v. Wurdeman, 232 S. W. 1002.

There is no statutory requirement in this state of notice to the adverse party as a prerequisite to the granting of temporary restraining orders rind injunctions, except in proceedings to stay suits or judgments (section 1952, R. S. 1919), and such was not the relief sought by plaintiff in the proceeding pending before respondent on ...