State v. Henson

• Citation: 217 S.W. 17
• Decision Date: 22 December 1919
• Docket Number: No. 21624.,21624.
• Parties: STATE ex rel. ELAM v. HENSON, Judge et al.
• Court: Missouri Supreme Court

217 S.W. 17

STATE ex rel. ELAM v. HENSON, Judge et al.

No. 21624.

Supreme Court of Missouri, in Banc.

December 22, 1919.

Original proceeding by the State, on the relation of Oscar B. Elam, for a writ of prohibition against Charles L. Henson, Judge of the Lawrence County Circuit Court, and others. Petition denied.

This is an original proceeding by prohibition. The petition was filed upon certain facts, hereinafter stated, and a preliminary rule issued. In due season, respondents filed their return to the rule, and thereupon relator filed 12 several motions to strike out various portions of said return, all of which were overruled. Relator then filed his reply. Numerous exhibits are also filed. In this condition of the record, the cause, having been briefed and orally argued, is submitted for judgment.

It would be wasted effort to undertake to make a detailed statement of the voluminous and largely superfluous allegations of fact set forth in this record. We Will content ourselves with stating so much only as may be necessary to an understanding of the points upon which our decision rests.

One of the respondents, E. P. Henderson, brought suit in the circuit court of Barry county, Mo., against relator and one Miller, the general purpose of which was to compel the conveyance to Henderson of about 360 acres of land in Barry county, the title to which then stood in defendants' names. This suit was sent on change of venue to Lawrence county, and there tried before the court, without a jury. The court dismissed the petition as to plaintiffs and as to said Miller, and adjudged that relator was the owner of an undivided one-half interest in said lands. At some stage of affairs, the title to all of the lands seems to have been in Miller, who conveyed an undivided one-half interest to relator, and afterward conveyed the whole tract to respondent Henderson. It was this, apparently, that led to the litigation mentioned. Henderson was apparently in possession of all, or practically all, of the land when the judgment was rendered. Both respondent Henderson and relator, Elam, appealed to this court, and that case (entirely independent of this proceeding) is now pending here. Relator avers that he has dismissed his appeal. Henderson's appeal remains. After judgment in the trial court, and after appeal taken, on Elam's motion and by consent of parties, the respondent Ora H. Hudson was appointed receiver of the lands in question, and took possession thereof. Thereafter Elam applied to the trial court to remove Hudson as receiver, and this motion was overruled. Thereupon relator filed his petition in this court for a writ of prohibition against Hon. Charles L. Henson, judge of the Lawrence county circuit court, Ora H. Hudson, receiver, and E. P. Henderson, the plaintiff in said suit, with the primary purpose of terminating the receivership, and a preliminary rule was issued against them, as above set forth.

Oscar B. Elam, of Springfield, pro se.

D. S. Mayhew, of Monett, for respondent Henson.

WILLIAMSON, J. (after stating the facts as above).

After patient and attentive study of the more than 200 pages comprising relator's abstract of the record and brief, we conclude that his grounds for the application for the writ of prohibition are as follows, to wit: First, that the court had no jurisdiction of the cause wherein the receiver was appointed; and, second, that the court had no power to appoint a receiver after both parties had appealed the cause to this court. These grounds are repeated in various forms, but the foregoing is the substance of them.

Relator assigns as a reason for his contention that the lower court had no jurisdiction of the cause wherein the receiver was appointed, the fact, as he claims, that the petition in said suit does not state facts sufficient to constitute a cause of action. Relator's demurrer, based on that ground, was duly presented to the trial court, and was overruled. Mere error in ruling" on a demurrer does not deprive the trial court of jurisdiction. State ex rel. v. McQuillin, 262 Mo. 256, loc. cit. 268, 270, 171 S. W. 72. Judgment was thereafter rendered in that cause, and it is now in this court on appeal. For us now to pass on the sufficiency of that petition in this collateral and incidental proceeding would be obviously improper. We will not prejudge the appeal in the case of Henderson v. Elam, now pending in this court, but will let it take the usual course and be heard in the usual way, as a whole and not by piecemeal. To do otherwise would be to set a precedent full of disastrous possibilities. It would mean that the correctness of the ruling of the trial court in every case, both civil and criminal, where a demurrer was presented and overruled, could be brought here for our judgment while further proceedings below were halted. It would result in intolerable delay and confusion, and would clog the docket of this court with innumerable applications for original writs. State ex rel. v. McQuillin, 250 Mo. 693, loc. cit. 706, 165 S. W. 713; State ex rel. v. Stobie, 194 Mo. 14, 92 S. W. 191, and cases there cited.

We will not lie in wait for a case peacefully traveling the open highway of the law to orderly adjudication, and slay it unawares. We rule this contention against relator.

We turn now to relator's second assignment, to wit, that the lower court had no power to appoint a receiver after final judgment and appeal, and that tile order is therefore void.

We think there is no merit in this assignment. The cases of Priddy v. Hayes, 204 Mo. 358, 102 S. W. 976, and State ex rel. v. Patterson, 207 Mo. loc. cit. 148, 105 S. W. 1048, cited by relator, do not support his contention. We have a statute which, construed according to its plain intent and purpose, seems aptly to apply to such a situation as is here presented. This statute reads as follows:

"The court, or any judge thereof in vacation, shall have power to appoint a receiver, whenever...