State v. McElhinney

• Decision Date: 04 May 1915
• Docket Number: No. 14815.,14815.
• Citation: 190 Mo. App. 618,176 S.W. 292
• Parties: STATE ex rel. SHIEK et al. v. McELHINNEY, Circuit Judge.
• Court: Missouri Court of Appeals

176 S.W. 292

190 Mo. App. 618

STATE ex rel. SHIEK et al. v. McELHINNEY, Circuit Judge.

No. 14815.

St. Louis Court of Appeals, Missouri.

May 4, 1915.

Rehearing Denied May 18, 1915.

Prohibition by the State, on relation of Walter W. Shiek and others, against John W. McElhinney, judge of the circuit court of St. Louis county. Preliminary writ quashed..

Oliver A. Fabick and W. W. Shiek, both of St. Louis, for relators. Bernard Greensfelder, of St. Louis, for respondent.

ALLEN, J.

This is an original proceeding in this court, in prohibition. On November 28, 1914, Cornelia A. Gereke and others filed a suit in equity in the circuit court of St. Louis county against Walter W. Shiek and others, the object thereof being to enjoin the erection of a building upon a lot of ground owned by said Whiter W. Shiek and wife, in alleged violation of certain building restrictions to which it is said that such lot is subject. On March 18, 1915, on the application of the defendants in said cause, we awarded a preliminary writ of prohibition directed to Hon. John W. McElhinney, judge of division No. 1 of the circuit court of said county, wherein said cause was pending, requiring him, as such judge, to show cause why our preliminary rule in prohibition should not be made absolute. Such writ was issued upon the theory that the circuit court of St. Louis county had acquired no jurisdiction over the defendants in said action. The respondent judge has duly filed his return herein, and the matter has been submitted on briefs of counsel; the issue presented being purely one of law. In the petition in the injunction suit it is averred that the plaintiffs therein are the respective owners of certain lots of ground fronting on Water-man avenue, in what is known as West Portland place in St. Louis county; that Walter W. Shiek and Mabel M. Shiek, defendants therein (relators here) are the owners of a lot of ground likewise fronting on Water-man avenue in said West Portland place, having acquired the same by warranty deed from one Bridges and wife, "subject to all conditions and restrictions of record on the date of said deed"; that Bridges acquired title thereto from the Takoma Realty Company, which corporation is the common source of title of all of such lot owners parties to the action. And it is averred that among the conditions, covenants, and restrictions set forth in the deed from the Takoma Realty Company to Bridges aforesaid is one binding the latter, his successors and assigns, not to erect any dwelling upon the lot of land described therein the main portion of which shall be less than two stories in height, to which restrictions the lots owned by plaintiffs are in like manner made subject. The other defendants therein, relators here, are averred to have acquired an interest in the property so deeded to Walter W. Shiek and wife, by virtue of two deeds of trust thereon. And the petition in the injunction suit avers that the defendants herein, these relators, "are violating, and attempting to violate, the restrictions, covenants, conditions, and stipulations" set forth in the deed from the Takoma Realty Company to Bridges, and in the deed from Bridges and wife to Walter W. Shiek and wife, in that said defendants are in the act of erecting a house upon the lot mentioned, the main portion of such building being less than two stories in height. And it is averred that if the defendants therein are permitted to so erect said building, the property of plaintiffs and other like lot owners will be thereby damaged. The prayer is that the defendants, their agents and servants be permanently enjoined from erecting upon such lot a building of the character mentioned, and that they be required to conform in all respects with the restrictive covenants contained in the deeds above mentioned.

Though the property lies in St. Louis county, where the action was instituted, all of the defendants in the injunction suit (these relators) are residents of the city of St. Louis, and process was served on them therein. That is, writs of summons were caused to be issued, directed to the sheriff of the city of St. Louis, and by him served upon the defendants in said city. They appeared specially, and moved to dismiss the action on the ground that the circuit court of St. Louis county had acquired no jurisdiction over them by such service. This motion being denied, said defendants applied to this court to prohibit the circuit court from proceeding further with the cause.

It is the contention of relators that title to land can be in no wise affected by the injunction suit and hence the action is one which must be instituted in accordance with section 1751, Revised Statutes 1909. On the other hand, the position of respondent is that the action is one affecting the title to the real estate mentioned, and which therefore may and should be instituted in the county where the land lies under section 1753, Revised Statutes 1909. In support of relators' contention it is argued that section 1753, supra, applies only to cases in which title to land is the subject of the controversy, and the judgment will operate directly upon the title, citing, among other cases, State ex rel. v....