State v. Kimmel

• Decision Date: 08 February 1916
• Docket Number: No. 15084.,15084.
• Parties: STATE ex rel. BUCKINGHAM HOTEL CO. v. KIMMEL, Judge.
• Court: Missouri Court of Appeals

183 S.W. 651

STATE ex rel. BUCKINGHAM HOTEL CO. v. KIMMEL, Judge.

No. 15084.

St. Louis Court of Appeals. Missouri.

February 8, 1916.

"Not to be officially published."

Original proceeding in prohibition by the State, on the relation of the Buckingham Hotel Company, against Karl Kimmel, Judge, to prohibit the enforcement of an order. Preliminary rule in prohibition made absolute, and writ awarded.

Charles A. Houts, of St. Louis, for relator. Jeffries & Corum, of St. Louis, for respondent.

ALLEN, J.

This is an original proceeding in prohibition, whereby it is sought to prohibit the enforcement of an order adjudging certain costs against relator in an action in the circuit court in which relator was one of the defendants. Upon the filing of relator's petition for the writ we issued our preliminary rule in prohibition, requiring the respondent to show cause on a day named why such rule should not be made absolute. Respondent duly appeared by counsel and filed a demurrer to relator's petition, and the cause is before us upon this demurrer.

In its petition relator, the Buckingham Hotel Company, a corporation, avers that on or about March 30, 1915, one Fred Cline filed a petition in the circuit court of the city of St. Louis against it and certain individuals, wherein said plaintiff alleged misconduct on the part of the individual defendants, as officers of the relator company, praying for the appointment of a receiver for relator and for other relief; that relator and all other defendants in said cause entered their appearance therein, and thereafter, to wit, on June 30, 1915, an application for the appointment of a receiver, pending the final hearing of said cause, came on to be heard before the respondent judge, presiding in Division No. 9 of the circuit court of the city of St. Louis; and that during the progress of said hearing respondent made and entered the following order, in which relator is referred to as the "Hotel Company," viz.:

"Cause called for trial on plaintiff's application for appointment of receiver, and defendants waiving issuance and service of order to show cause, hearing on said application progressed and during the progress of the hearing the court orders that an audit of the books of defendant Hotel Company be made at the expense of the Hotel Company; by consent of parties the court appoints Westermann, Trader & Co., public accountants, to examine and audit the books from the time of the incorporation to the date of the final examination, and they are hereby directed to report such examination and audit without unnecessary delay; further hearing upon said application for appointment of receiver is passed until further order of the court."

It is averred that this order was not asked for by either the plaintiff or the defendants, but was made by respondent solely upon his own initiative for the purpose of securing additional evidence for his consideration in passing upon the application for the appointment of a receiver.

It is further averred that this order was entered over the protest and objection of all the defendants in the cause, and that thereafter, on July 2, 1915, and at the same term, defendants filed a motion to vacate so much of the order as directed that an audit of relator's books be made at relator's expense; that this motion was overruled on September 1, 1915, and on the same day the court entered an order allowing Westermann, Trader & Co., the public accountants mentioned in the order of June 30, 1915, the sum of $1,222.50 for their services in examining and auditing relator's books, and ordered that the same be taxed as costs against the defendants.

And it is averred that the last-mentioned order of September 1, 1915, was entered without notice to relator or to any of the defendants in the cause, and that none of the defendants were present when it was entered; that it was not entered upon any application filed by said accountants, but by respondent judge upon his own initiative; and that there was no hearing of any sort thereon.

It appears that the cause was thereafter dismissed upon stipulation, at defendant's costs, and subsequently an execution was issued directed to the sheriff of the city of St. Louis commanding him of the goods and chattels of relator to make the sum of $1,358.35, being the costs taxed in the cause, including the item of $1,222.50 in question.

The demurrer admits the facts properly pleaded in relator's petition, and the question before us therefore is whether, upon these conceded facts relator should be awarded the relief sought.

It is urged that prohibition is not here the appropriate remedy. But we think that the point is not well taken. It is well settled that the writ will lie to prevent the exercise of judicial power not only where there is a total lack of jurisdiction over a cause itself, but where the court, in a cause over which it possesses jurisdiction, is proceeding in excess of its jurisdiction. See State ex rel. v. Seehorn, 246 Mo. 541, 151 S. W. 716, and authorities cited; State ex rel. v. McQuillin, 246 Mo. loc. cit. 532, 152 S. W. 347. In the latter case it is said:

"So, in a given case, though the court has general jurisdiction of that class of cases, if it is about to do in that case some particular important thing which it has no judicial power to do, the writ has been allowed."

In State ex rel. v. Fort, 210 Mo. loc. cit. 525, 109 S. W. 739, the Supreme Court said:

"It cannot be doubted that (subject to a judicial discretion to be exercised in issuing all discretionary writs) the writ of prohibition may go to confine a court within the limits of its jurisdiction whether such court has no jurisdiction at all or is exercising powers in excess of its rightful jurisdiction. So much is elementary. The writ may go whenever judicial functions are assumed, not rightfully belonging to the person...