State v. Flitcraft

• Decision Date: 30 June 1896
• Citation: 36 S.W. 675
• Parties: STATE ex rel. WALKER, Atty. Gen., v. FLITCRAFT, Circuit Judge.
• Court: Missouri Supreme Court

36 S.W. 675

STATE ex rel. WALKER, Atty. Gen., v. FLITCRAFT, Circuit Judge.

Supreme Court of Missouri, Division No. 2.

June 30, 1896.

BUILDING AND LOAN ASSOCIATIONS — SUPERVISOR — SUIT — DISMISSAL — REINSTATEMENT — ATTORNEY GENERAL — MANDAMUS.

1. Act March 22, 1895, § 1, created a bureau of building and loan supervision, and made the state treasurer ex officio supervisor of all such associations. Whenever it appeared that an association had violated its charter, or was conducting its business in an unsafe manner, after notice to the association, the supervisor was empowered, by section 7, to bring suit in the circuit court to enjoin the association, and for dissolution, and the settling and winding up of its affairs. Section 8 provided that "such proceedings shall be conducted by the attorney general of the state, and in the name of the state of Missouri as plaintiff at the relation of the supervisor." Held, that after the institution of such a suit the supervisor might have the cause dismissed or stricken from the docket without the knowledge or consent of the attorney general.

2. After the dismissal of such a suit by the supervisor against the wishes of the attorney general, where a second suit is brought, in another division of the court, at the relation of the supervisor, before a motion to reinstate the first suit has been filed by the attorney general, and in the meantime a receiver has been appointed in the second suit, and is rightfully in the possession of the property of the association, the first suit will not be reinstated.

3. The provision of section 8 is not mandatory; and where, for any reason, the attorney general has refused or failed to conduct the suit at the relation of the supervisor, it may be conducted by other counsel, and defendant cannot question the court's jurisdiction, since its rights are not thereby affected.

Gantt, P. J., dissenting.

Original proceedings in mandamus by R. F. Walker, attorney general, against P. R. Flitcraft, circuit judge, to compel respondent to reinstate a certain cause on the docket of the court over which he presides. Dismissed.

R. F. Walker, Atty. Gen., in pro. per. Alderson & McIntire and Draffen & Williams, for respondent.

BURGESS, J.

This is an original proceeding by mandamus to compel the respondent, one of the judges of the circuit court of the city of St. Louis, to reinstate on the docket of division No. 2 of said court, over which he presides, a certain cause theretofore commenced in said court by the relator in the name of the state of Missouri at the relation, under the direction, and upon facts furnished by Lon V. Stephens, state treasurer, and ex officio supervisor of building and loan associations, under the provisions of an act of the general assembly of the state of Missouri approved March 22, 1895, which said cause has, upon the order of said supervisor, been stricken from the docket by respondent. To the alternative writ issued in accordance with the prayer of the petition filed herein, respondent made return as follows:

"(1) The respondent admits that the facts set forth in the alternative writ of mandamus are true, but alleges that the same are not all the facts attending the refusal of the respondent to reinstate the case instituted by the relator against the Western Building and Loan Association and the St. Louis Trust Company.

"(2) For his further return to the alternative writ of mandamus the respondent alleges that, said cause having been dismissed at the request and on the motion of the supervisor of building and loan associations on November 5, 1895, the relator, the attorney general, filed in division No. 2 of the circuit court of the city of St. Louis, over which the respondent presided, and now presides, on November 13, 1895, his said motion to reinstate said cause; that afterwards said motion was taken up for consideration, and the supervisor of building and loan associations did object to said cause being reinstated, and requested and urged upon the respondent, as such judge, that said motion of the attorney general be overruled and refused; and it was then shown and made to appear to the respondent that on November 9, 1895, the supervisor of building and loan associations had instituted an action in the circuit court of the city of St. Louis against the Western Building and Loan Association and the St. Louis Trust Company for the purpose of dissolving and winding up the affairs of said building and loan association, and to annul an alleged assignment by said building and loan association to said St. Louis Trust Company; that said cause was then pending in division No. 7 of said circuit court; that the said supervisor did apply in said division No. 7 of said court for a temporary receiver of the effects of said Western Building and Loan Association, and that said application had been granted, a temporary receiver had been appointed, who had qualified, and taken possession of all the property and effects of said Western Building and Loan Association, and was holding and preserving the same in pursuance of an order of said division No. 7 of said circuit court so authorizing and directing; that the petition in said cause so instituted by the supervisor of building and loan associations was signed by him, the deputy supervisor, the circuit attorney of the city of St. Louis, and a member of the St. Louis bar, as special counsel for said supervisor, and was verified by said deputy supervisor.

"(3) And the respondent alleges and shows to the court that said motion of the attorney general was taken under advisement until the 9th day of December, 1895, when the same was by the division of said court over which the respondent presides overruled and refused; but prior to the overruling of said motion the said cause which had been instituted by said supervisor of building and loan associations, and which was assigned and was pending in division No. 7 of said circuit court, had been by all the parties thereto finally submitted to said division No. 7, had been fully heard, and said division No. 7 of said court, then having full, complete, and exclusive jurisdiction of said cause and of all the matters therein involved, had taken said cause under advisement, and this before the decision upon the said motion of the relator by division No. 2 of said court, and while the respondent had said motion of the relator under advisement, and thereafter said division No. 7 found all of the issues in favor of the plaintiff therein, ordered the dissolution of said Western Building and Loan Association, declared the assignment by it to said St. Louis Trust Company void, and appointed a permanent receiver of said Western Building and Loan Association for the purpose of settling and winding up its affairs; that said finding and judgment of said division No. 7 of said court were made and entered upon the records thereof on the 10th day of December, 1895; and a certified copy of said judgment and decree is hereto attached, and marked `Exhibit A.'

"(4) The respondent further alleges that he has been informed and believes, and it appears by the affidavit of Honorable Lon V. Stephens, supervisor of building and loan associations, that while said cause was pending in said division No. 7 of said court the said supervisor of building and loan associations requested the attorney general of the state of Missouri to appear therein, and conduct the same, and that such request was by the attorney general refused, and the attorney general did not and would not appear and conduct said cause; that a certified copy of said affidavit filed in said cause in said division No. 7 of said court, showing such request and refusal, is hereto attached, and marked `Exhibit B,' and the same is in words and figures as follows: `State of Missouri, City of St. Louis — ss.: In the Circuit Court of the City of St. Louis, Mo. October Term, 1895. State of Missouri ex rel. Lon V. Stephens, State Treasurer, and Ex Officio Supervisor of Building and Loan Associations, Plaintiff, vs. Western Building and Loan Association and St. Louis Trust Company, Defendants. No. 229. Room 7. Lon V. Stephens, being duly sworn, on oath states as follows: That he is the treasurer of the state of Missouri and ex officio supervisor of building and loan associations; that since the institution of the above-entitled cause he has made a personal request of Hon. R. F. Walker, attorney general of the state of Missouri, to appear and conduct this case; that said R. F. Walker refused, and still refuses, to so do. [Signed] Lon V. Stephens. Subscribed and sworn to before me this 3d day of December, 1895. [Signed] Thos. B. Rodgers, Clerk.'

"(5) The respondent alleges that at the time of the hearing of said motion of the attorney general to reinstate the case dismissed by the respondent on the motion and at the request of the supervisor of building and loan associations, it was made to appear that, though the supervisor had previously requested the attorney general to institute proceedings against said Western Building and Loan Association, on the very day the attorney general did institute said action, and prior to the institution of the same, the said supervisor, by and through his deputy, did withdraw such request, and did notify said attorney general not to institute such proceedings; that the supervisor of building and loan associations at all times objected to the reinstatement of said cause; and because of all the facts the respondent, as judge of division No. 7 of said circuit court, did overrule the said motion of the attorney general, and did refuse to reinstate said cause.

"(6) The respondent further alleges that under the provisions of an act entitled `An act creating a bureau of supervision and inspection of building and loan associations; making the state treasurer ex officio supervisor; providing for the appointment of a deputy supervisor and special examiners; providing for the levying and...