State v. Green

• Decision Date: 03 March 1936
• Docket Number: No. 5510.,5510.
• Citation: 92 S.W.2d 930
• Parties: STATE ex rel. ST. LOUIS COOPERAGE CO. v. GREEN, Circuit Judge.
• Court: Missouri Court of Appeals

92 S.W.2d 930

STATE ex rel. ST. LOUIS COOPERAGE CO. v. GREEN, Circuit Judge.

No. 5510.

Springfield Court of Appeals. Missouri.

March 3, 1936.

Rehearing Denied April 15, 1936.

"Not to be published in State Reports."

Original prohibition proceeding by the State, at the relation of the St. Louis Cooperage Company, against Will H. D. Green, Judge of the Circuit Court of Shannon County.

Writ of prohibition quashed.

Wm. R. Schneider, of St. Louis, for relator.

Wm. P. Elmer, of Salem, for respondent.

ALLEN, Presiding Judge.

This case is a proceeding in prohibition, based on relator's verified petition and supporting exhibits, filed in this court. The petition, exhibits, the writ, the return thereto, and demurrer to relator's petition constitute the record. The facts stated in the petition, in substance, are as follows: Relator is a corporation; the respondent is the judge of the circuit court of Shannon county.

Further facts related in the petition are that in August, 1933, John Emory, as plaintiff, filed in the circuit court of Dent county a suit at law, asking judgment for $1,800 for 18,000 beer staves sold to defendant cooperage company, relator herein.

On February 23, 1934, Emory filed a second suit in the circuit court of Dent county against relator only, in the second count of which petition Emory prayed damages in the sum of $2,050, for alleged failure of relator to perform the contract therein mentioned. Both actions on relator's petition went, on change of venue, to the circuit court of Shannon county. Both suits were set for trial on the 18th day of May, 1934, in the circuit court of Shannon county. On that day relator filed in said first suit its answer and plea to the jurisdiction, in the nature of a bill of interpleader, reciting that four different parties were claiming the amount sought to be recovered by Emory in the first suit mentioned, and praying that said suit be converted into a suit in equity, in the nature of an interpleader proceeding, and that relator be permitted to pay said fund into court and stand discharged, and that all of said claimants be ordered to interplead for said fund. The respondent judge denied the request.

On relator's oral motion respondent granted relator a continuance of both suits until relator could file its suit in equity, in the nature of an interpleader proceeding, in the circuit court of St. Louis county, in which plaintiff contended that two additional claimants to the said fund resided.

Thereafter relator filed a bill of interpleader in the circuit court of St. Louis county, in which it prayed for a temporary restraining order on Emory, asking that Emory be restrained from continuing the prosecution of the said two suits at law, then in Shannon county, until a bill of interpleader could be determined, which was issued by the circuit court of St. Louis county, on the 29th day of May, 1934, and presented to respondent judge.

Relator's counsel requested that respondent continue the two first mentioned suits at law until relator's interpleader could be heard and determined in the circuit court of St. Louis county. Emory, by counsel, advised Judge Green that he (Emory) was ready for trial in both suits at law, and the judge advised relator that he was ready to proceed with the trial of said causes.

Relator then requested the respondent, Circuit Judge Green, to grant it (the company) a continuance of said cause, until such time as relator could apply to this court for a writ of prohibition herein, which was by the judge extended to June 2d.

Relator contends that the remedy by appeal from the two suits then pending in the circuit court of Shannon county is inadequate to protect relator from the unnecessary expense of a multiplicity of suits; and alleges that both of said suits then pending and all others with which relator is threatened could be settled in one interpleader proceeding in the circuit court of St. Louis county; and alleges that relator has no adequate remedy at law other than a writ of prohibition, issued by this court, prohibiting Judge Green from proceeding with the trial of the first two suits at law in Shannon county. Upon which petition relator asked this court to issue its preliminary writ of prohibition herein, directing said circuit judge to proceed no further in the case of Emory v. Cooper and the St. Louis Cooperage Company in the circuit court of Shannon county, and to proceed no further with the second count of the petition in the case of Emory v. Cooperage Company in the circuit court of Shannon county until further order of this court.

To which writ of prohibition respondent made the following return: "Now comes Will H. D. Green, Judge of the Circuit Court of Shannon County, Missouri, and makes return to the writ of prohibition herein, and shows to the court that in the matters concerning which he has been cited to appear, he proceeded with and was proceeding in the proper exercise of his jurisdiction in such matters conferred upon him by law, and that there is no valid reason at law, why the rule heretofore made against him should be made absolute, and that he attached hereto a demurrer to the relator's petition, and asks that the same be sustained and that said rule may be quashed."

Respondent's demurrer to the petition was in substance as follows: That the petition failed to state facts sufficient to constitute a cause of action; that the circuit court of one county is without jurisdiction to enjoin or stay a proceeding in the circuit court of another county of this state; that the circuit court of St. Louis county, by its order, could not acquire jurisdiction over the suits pending in the circuit court of Shannon county; that the filing of the so-called interpleader suit in the circuit court of St. Louis county did not deprive the circuit court of Shannon county of jurisdiction to hear and determine actions pending in the latter court; that the relator has a complete remedy at law in the circuit court of Shannon county; that the circuit court of Shannon county was not acting without jurisdiction, and this action should have been brought, if at all, in the circuit court of Shannon county; that the two actions were brought in the circuit court of Dent county, and, on application by relator for change of venue, sent to the circuit court of Shannon county, and that the Shannon county circuit court has jurisdiction thereof, and, having acquired jurisdiction first, retains its jurisdiction, and no other court of co-ordinate power was at liberty to interfere with its action.

The matters and things leading to and resulting in the commencement of this action in prohibition were, first: The suit in Dent county, filed on August 24, 1933, by Emory v. Cooper and the St. Louis Cooperage Company, Relator, in which Emory alleged that on the ____ day of August, 1933, he sold and delivered in Dent county, to the two defendants in said suit, 18,000 barrel staves for the price and sum of $1,800; and on February 23, 1934, in the same court, Emory filed a second suit against relator, cooperage company, the second count of which alleged that the contract was made and the cause of action accrued in Dent county, and alleged that on the ____ day of August, 1933, Emory contracted to sell, and the St. Louis Cooperage Company contracted to buy from him (Emory), the staves mentioned; that the staves were to be manufactured by Emory in Dent county; that the timber therefor was to be purchased by Emory and held in reserve for the purpose of manufacture for the cooperage company; and alleged that he (Emory) delivered to the said cooperage company 18,000 staves, and that, after having received said 18,000 staves, the cooperage company, without excuse, refused to accept the balance of 82,000 staves, alleging that he (Emory) was damaged by the refusal of the cooperage company to receive same, and prayed judgment in the sum of $2,050.

Thereafter, on May 21, 1934, relator, cooperage company, filed in the circuit court of St. Louis county a bill of interpleader against D. H. Thorn, John Emory, C. E. Cooper, and D. H. Thorn and John Emory as a copartnership, alleging that Thorn was a resident of St. Louis county, and that Cooper and Emory were residents of Dent county; and that Thorn during May, 1933, called at relator's office for the purpose of selling to it the entire production of a certain barrel stave dressing machine, to be delivered to relator; that Thorn again came to relator's office, accompanied by Emory, whom Thorn introduced as his partner, in the stave enterprise, at which time it was agreed by all the parties that all checks for payment of staves to be delivered by the partnership of Thorn and Emory were to be payable to Thorn and Emory and were to be delivered to Thorn, as he would call for them after delivery.

Relator stated in its bill of interpleader that it continued to do business with the partnership of Thorn and Emory during the first half of August, 1933, when its attention was directed to a possible business disagreement between the said Thorn and Emory, and that from that time the relator, cooperage company, refused to accept any further staves from them until such time as they could settle their differences; that relator was then approached by Cooper, who informed relator that he was in a position to sell and deliver to it all of the production of the said barrel stave dressing machine, formerly operated by said Emory and Thorn, in their behalf; that, upon being assured by Cooper that he was in a position to give clear title to the staves produced by said dressing machine, Cooper completed four deliveries of staves to the relator; that relator was first advised by Thorn that he (Thorn) was a part owner of the said staves delivered to it by Cooper, and that, if it paid Cooper for said staves so delivered by Cooper in the four deliveries mentioned, he (Thorn) would bring a suit against the cooperage company for the selling...