State v. Garesche

• Decision Date: 28 March 1919
• Docket Number: No. 20983.,20983.
• Parties: STATE ex rel. SANITARY STREET FLUSHING MACHINE CO. et al. v. GARESCHE, Judge, et al.
• Court: Missouri Supreme Court

210 S.W. 900

STATE ex rel. SANITARY STREET FLUSHING MACHINE CO. et al. v. GARESCHE, Judge, et al.

No. 20983.

Supreme Court of Missouri, Division No. 2.

March 28, 1919.

Petition for prohibition by the State, on relation of the Sanitary Street Flushing Machine Company and another, against Vital W. Garesche, Judge of the Circuit Court, and another. Prohibition denied, and preliminary rule discharged.

Jeptha D. Howe and Morton Jourdan, both of St. Louis, for relators.

Leahy, Saunders & Barth, of St. Louis, for respondents.

WHITE, C.

This is an original proceeding in prohibition. The relators filed their petition praying for the writ, and this court issued a preliminary rule, to which the respondents filed a return on July 12, 1918. Thereupon the relators have filed their motion for a judgment upon the pleadings notwithstanding the return, praying for a permanent writ of prohibition.

The relators are the Sanitary Street Flushing Machine Company and Charles Sutter; the respondents are Vital W. Garesche, judge of the circuit court of the city of St. Louis presiding in division No. 14, and Thomas C. Fauntleroy, receiver.

The purpose of the writ is to restrain the said circuit judge and said receiver from enforcing a judgment entered by said judge, by which judgment the relators were restrained from doing certain things and the property of the Sanitary Street Flushing Machine Company was placed in the hands of the receiver, Fauntleroy.

The petition for the writ filed herein sets forth the pleadings and the record of the proceedings in the circuit court on which the judgment was entered. The petition in that case, in which Gertrude Shaw and others were plaintiffs and the relators here were defendants, set out that the plaintiffs were stockholders in the Sanitary Street Flushing Machine Company, and were prosecuting the action on their behalf and on behalf of all stockholders in said corporation who may be joined as parties plaintiff. It alleged that the defendant Sutter, former president of the Sanitary Street Flushing Machine Company, attempted to sell the assets of the corporation, and set forth a number of deals and attempted deals with other persons and corporations whereby the assets of the, corporation were in danger of being dissipated, and were in fact dissipated, and prayed that the defendant corporation and defendant Charles Sutter, relators here, and the officers and agents of said corporation be restrained from dealing with, adjusting, releasing, or discharging any claims or rights of action of any description belonging to said corporation, and from selling or transferring or disposing in any way whatever of any of the assets of said corporation, and that a receiver be appointed to take charge of the business, property, and effects of said corporation and to collect such assets by proper proceeding.

The relators here, defendants in that proceeding, answered. A judgment was rendered by Judge Garesche on the 23d day of July, 1917, in favor of the plaintiffs in accordance with the prayer of the petition, and the defendants, relators, here, were enjoined from in any wise dealing with, directly or indirectly compromising, adjusting, releasing, or discharging any of the claims of any kind belonging to said corporation, or in which the said corporation formerly had or now has any interest, and from selling, transferring, or disposing of any of the assets of said corporation, and from appropriating or using the same, or any part thereof to their own use for any purpose whatsoever.

It was further ordered and adjudged that Thomas C. Fauntleroy be appointed receiver of said Sanitary Street Flushing Machine Company, and that he be empowered and directed to take charge of all business, property, effects, and causes of action of defendant corporation, and to manage, collect, and recover, by any proceedings in law or equity under the orders of the court, all assets or property belonging to said corporation and wrongfully or unlawfully transferred to any other person.

The record recites that the defendants, relators here, filed their separate motions for new trial, which were overruled, and also filed their separate motions to dissolve the injunction and vacate the order appointing receiver, and each of said motions was overruled.

The defendants thereupon filed their affidavit for appeal, an appeal bond was fixed at $50,000, and the same was filed with proper security and appeal granted to this court. None of the motions for new trial or to dissolve injunctions or set aside the order appointing a receiver are set out.

The order of court granting the appeal, however, after reciting the appeal and the fixing of the supersedeas bond, contains the following:

"It is further ordered that the defendants have until and including December 13, 1917, within which to file such bond, and that...