State v. Hirzel

Decision Date01 December 1896
PartiesSTATE ex rel. ST. LOUIS & K. R. CO. et al. v. HIRZEL, Judge, et al.
CourtMissouri Supreme Court

2. The approval of an appeal bond determines the question of its sufficiency as a stay of proceedings until the further order of some competent court. Brewing Co. v. Talbot (Mo. Sup.) 36 S. W. 657, followed.

3. Where an appeal has been taken from an order refusing to vacate the appointment of a receiver, and the court maintains the receiver in possession of the property after a statutory stay bond has been filed and approved, prohibition is a proper remedy.

4. In such case, defendants need not, after approval of the bond, make any further formal application to the judge making the order, by way of suggesting his want of jurisdiction over the property, before applying to the supreme court for the writ.

5. In a case in which a receiver is appointed, and an order is made refusing to vacate the appointment, the appeal may be allowed and perfected in vacation.

6. The statute regulating procedure in prohibition contemplates a simple form of action between the actual parties concerned as plaintiffs and defendants, and applies the general provisions of the Code of Practice to such cases as far as applicable (Laws 1895, p. 95, § 3), and an application for the writ in the name of the state at the relation of an interested party is improper.

In banc. Proceeding by the state of Missouri, at the relation of the St. Louis & Kirkwood Railroad Company and others, to obtain a writ of prohibition to Rudolph Hirzel, judge of the St. Louis county circuit court, prohibiting such judge from maintaining the receiver in possession of certain property obtained by means of a writ of assistance in the hands of the sheriff. Writ granted.

M. R. Smith and Edward Hidden, for plaintiffs. Dawson & Garvin, for defendants.

BARCLAY, J.

This is an original proceeding to obtain a prohibition against Judge Hirzel, as circuit judge of St. Louis county. The plaintiffs are the same parties who are defendants in the case of Mrs. Spencer and her husband against them in the circuit court of the said county. The demand for a prohibition is founded upon proceedings in the Spencer Case. The petition therein may be shortly described as a creditors' bill against the St. Louis & Kirkwood Railroad Company, the Scenic Railroad Company, and Mr. Houseman. One of its features is a prayer for a temporary receiver to preserve and manage a certain railway line situated in part in St. Louis county. An application for such receiver in that case was granted August 27, 1896, after due consideration, by the learned circuit judge, in vacation. Defendants immediately filed a motion to vacate that order, which motion was overruled August 29, 1896. On the last-named day an appeal was allowed to the supreme court from the order overruling the motion to vacate the appointment of a receiver, the proper affidavit having been made. An appeal bond in the sum of $1,000 was afterwards duly approved by the circuit judge. Between the appointment and the ending of the steps for a suspensive appeal, the receiver was put into actual possession of the property by means of a writ of assistance in the hands of the sheriff. All of these proceedings took place during vacation of the circuit court, and defendants duly saved exceptions to the vital rulings. An unfortunate controversy arose touching some understandings between the counsel and the learned trial judge during the progress of the events described, but the case at bar can be decided without attempting to solve the issues of fact involved in that controversy. In the view entertained by this court of the undisputed and admitted facts, there is little difficulty in reaching a judgment. The receiver retained possession of the property after the perfected appeal, and did not turn it back to the possession of the defendants, notwithstanding the approval of their appeal bond. The receiver was made a party defendant in the present action in this court, along with the said judge and the sheriff who enforced the writ of assistance. No question as to proper parties has been started. The gravamen of the plaintiffs' complaint here is that the learned circuit judge maintains the receiver in possession, despite the appeal and bond. The object of this proceeding is to prohibit him from persisting in that course.

The action in the supreme court was commenced September 8, 1896. A preliminary rule in prohibition was made by our learned Brother GANTT, in vacation, substantially to the effect that defendants "be prohibited from attempting to take or hold further possession of said St. Louis & Kirkwood Railway Company, or any of its property, by virtue of said order appointing said receiver, and the said writ of assistance issued in aid thereof, pending said appeal," and that they show cause "why said receiver should not be ordered to restore forthwith any and all of said railroad and property of the said St. Louis & Kirkwood Railroad that may be in his possession by reason of said order." Returns to the rule were filed by the several defendants.

We have gleaned the above-recited facts from the pleadings, omitting much that the parties appear to deem important, but which we regard as immaterial, considering the opinion we entertain of the proper construction of the law of 1895 (Sess. Acts 1895, p. 91).

1. The legislative act just mentioned forms part of the general law governing appeals. It is an amendment to section 2246 of the Revision of 1889. The provisions of section 2249 concerning the stay of execution to enforce appealable orders are therefore applicable to appeals from orders refusing to vacate the appointment of a receiver. What is the effect of such an appeal, if accompanied with the approved statutory bond? It was held in State v. Lewis (1882) 76 Mo. 370, that the "stay of execution" mentioned in this law is not merely a stay of an execution, in its technical sense, but a stay of the appropriate process to enforce compliance with the judgment, where the latter commands something affirmative to be done. That idea has been since repeated. State v. Ranson (1885) 86 Mo. 327. The provisions for a stay of execution should have a similar interpretation as applied to the interlocutory orders appealable under the law of 1895. When a receiver, pending a suit, is appointed, and an appeal is duly taken (with statutory stay bond) after the order to vacate has been overruled, the further execution of the order appointing the receiver is stayed by virtue of the statute (Rev. St. 1889, § 2249). In the case of an ordinary execution, the giving of a stay or supersedeas bond in the required way not only stops further active steps upon that process, but in Missouri it also releases any execution that may have been taken out prior to the filing of the bond. Rev. St. 1889, §§ 2249, 2289. The statutory declarations on this point set at rest a question which has been a subject of some discussion and differences of opinion in other jurisdictions. Freem. Ex'ns (2d Ed.; 1888) § 271a. A receivership of such property as is involved in this controversy, namely, a going railway line, necessitates activity. The receiver is but the representative or hand of the judicial power, and his acts, theoretically at least, are those of the appointing court or judge. If it were held that the appeal and supersedeas did not restore the property to those from whom the receiver had taken it, then necessarily it must further be held that the court, by its receiver, should continue the active operation of the railway line, in order not to paralyze its usefulness or impair its value pending the appeal. Yet such activity would be no "stay of execution," such as supersedeas implies and our statute contemplates. On the other hand, if we adopt the analogy furnished by the Missouri statutes, declaring, in effect, that a supersedeas bond releases to the defendant in execution any of his property seized under that writ, it should then be held that a stay of proceedings by bond (upon an interlocutory appeal like this at bar) releases the property that has reached the hands of the temporary receiver by way of executing the original order of appointment. That rule has been announced in a number of states whose procedure permits an appeal directly from a provisional order appointing a receiver. Everett v. State (1867) 28 Md. 190; Northwestern Mut. Life Ins. Co. v. Park Hotel Co. (1875) 37 Wis. 125; Buckley v. George (1893) 71 Miss....

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    • United States State Supreme Court of Missouri
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