State v. Guthrie

• Decision Date: 10 June 1912
• Citation: 149 S.W. 305
• Parties: STATE ex rel. ALLEN et al. v. GUTHRIE, Circuit Judge.
• Court: Missouri Supreme Court

149 S.W. 305

STATE ex rel. ALLEN et al. v. GUTHRIE, Circuit Judge.

Supreme Court of Missouri.

June 10, 1912.

Rehearing Denied July 2, 1912.

1 PROHIBITION (§ 260)—RETURN—SUFFICIENCY.

A return to a rule to show cause why a writ should not be issued prohibiting defendant from assuming and exercising jurisdiction in a specific cause, denying that defendant has exercised, or contemplates exercising, jurisdiction in the cause specified, is responsive to the rule, presents an issue of fact, and, when the denial is admitted by a demurrer, justifies a denial of the peremptory writ.

2. APPEAL AND ERROR (§ 5180)—PETITION—EXHIBITS.

Exhibits, not filed with the pleadings, are not a part of the record in a prohibition proceeding, and cannot be considered.

3. APPEAL AND ERROR (§ 448)—JURISDICTION OF LOWER COURT—APPOINTMENT OF RECEIVER.

After an appeal from a judgment canceling a deed, the grantee, although still collecting and appropriating the rents, refused to pay the taxes or the interest on an incumbrance placed on the property by her. Held, that these matters occurring after the appeal was taken were not covered by the appeal bond; that the supersedeas bond would not prevent a foreclosure and sale of the property for default in a payment of the interest on the incumbrance, or a sale for nonpayment of taxes; and that the trial court had jurisdiction to appoint a receiver to preserve the status quo pending the appeal, since matters affecting the property in litigation, arising after the judgment and necessary to preserve the fruits thereof pending an appeal, are not beyond the jurisdiction of the trial court.

In Banc. Original proceeding in prohibition by the State, on the relation of Isabel Allen and another, against Joseph A. Guthrie, Judge of the Circuit Court of Jackson County. Peremptory writ denied.

J. D. Shewalter, for relators. R. H. Field, for respondent.

KENNISH, J.

This is an original proceeding by prohibition. Isabel Allen and Edward Allen are the relators, and Joseph A. Guthrie, judge of the circuit court of Jackson county, is the respondent. The purpose of the suit is to have this court prohibit the respondent, as judge of the said court, from taking further cognizance and exercising jurisdiction in a certain cause referred to and described in the petition. Upon presentation of the petition, a preliminary rule was granted. The respondent in due time made return thereto, whereupon relators filed a reply, and upon the issues thus made the cause was argued and submitted for judgment.

Much confusion and uncertainty exist as to the issues made by the pleadings. This condition of the record is due to the failure of the relators to state fully and clearly in their petition the facts relied upon, and also because of their failure to observe the uniform practice of filing, as an exhibit and as a part of their petition, the pleadings in the cause sought to be prohibited.

The facts stated in the petition for prohibition briefly are that in a certain suit theretofore pending in the circuit court of Jackson county, in which Oscar W. Ditsch, by guardian, was plaintiff, and relators and Mollie C. James were defendants, the court, in accordance with the prayer of the petition, annulled and set aside a deed to real estate described therein, executed and delivered by the plaintiff Ditsch to the defendant Isabel Allen, and also annulled and set aside a certain deed executed and delivered by the defendant Mollie C. James to the said Isabel Allen, conveying certain residence property located in Kansas City. In the decree entered, the court adjudged, among other things, that the defendant Mollie C. James was entitled to the residence property theretofore conveyed to Isabel Allen, and to the possession thereof, and also rendered a personal judgment against the said Isabel Allen and Edward Allen, in favor of the said Mollie C. James, for the sum of $3,500, the same to be a lien, until paid, on a certain manufacturing business belonging to the said Allens in said city. The defendants (relators herein) and the defendant Mollie C. James appealed from the said judgment to the Kansas City Court of Appeals. That court transferred the cause to this court upon a question of appellate jurisdiction, and it is now pending and undisposed of in this court. It is further alleged in the petition for prohibition that a supersedeas bond was given by appellants Isabel Allen and Edward Allen in said cause in the sum of $7,000, and that afterwards the said Mollie C. James appeared in the said circuit court "and asked the court to appoint a receiver to take charge of said real estate during the pendency of the suit;" that the appointment of a receiver was asked upon the sole, ground that the security upon the said bond was insufficient, and that the appeal was taken to the Court of Appeals, instead of to this court; that after considering the application the respondent decided to appoint a receiver as prayed; and that respondent, as said circuit judge, is without jurisdiction to make such appointment. The prayer of the petition is that a writ of prohibition be issued directing the said judge to show cause why he should not be prohibited from exercising"jurisdiction in the cause now pending in this court, etc.

Upon the petition thus filed, a preliminary rule was granted by this court and served upon respondent, together with a copy of the petition. The rule, omitting formal parts, was as follows: "The State of Missouri, to Joseph A. Guthrie, as Judge of the Circuit Court of Jackson County, Missouri—greeting: Whereas, on the 17th day of January, 1912, it was represented to the Supreme Court of...