State v. McQuillin

• Citation: 256 Mo. 693,165 S.W. 713
• Parties: STATE ex rel. FENN et al. v. McQUILLIN, Judge of Circuit Court, et al.
• Decision Date: 10 February 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 713

256 Mo. 693

STATE ex rel. FENN et al. v. McQUILLIN, Judge of Circuit Court, et al.

Supreme Court of Missouri.

February 10, 1914.

Rehearing Denied April 2, 1914.

1. PROHIBITION (§ 26)—PLEADING—ISSUES.

Though the practice of defendants in a prohibition proceeding of only filing one pleading, which first demurred to the petition, then denied the whole petition, and then answered it, is not to be commended, the Supreme Court may of its own motion determine any issues thus made.

2. PROHIBITION (§ 26)—PLEADING.

In analogy to the rule that a demurrer and an answer to the whole petition will not lie at the same time, it is improper practice to answer a petition in prohibition by filing a single pleading which first demurred to the whole petition, then denied it, and then answered it.

3. PROHIBITION (§ 24)— PLEADING — DISMISSAL.

The better practice authorizes the Supreme Court to dismiss a prohibition proceeding where only the petition and return are before the court, especially where the return is substantially merely a general denial, though it may of its own motion consider any issue so made.

4. PLEADING (§ 214) — DEMURRER — ADMISSIONS.

A demurrer admits all facts well pleaded.

5. PROHIBITION (§ 5)—PURPOSE OF WRIT.

Under the direct provisions of Rev. St. 1909, § 2622, the office of a writ of prohibition is to prevent inferior courts from usurping judicial authority, which includes the assumption of jurisdiction without right, as well as exceeding jurisdiction in cases of which they have jurisdiction.

6. PROHIBITION (§ 11)—GROUNDS.

The issuance of a writ of prohibition is not authorized because the petition in the action sought to be affected is demurrable, if the court has jurisdiction of that general class of actions.

7. PROHIBITION (§ 10) — GROUNDS — LACK OF JURISDICTION.

A writ of prohibition lies to restrain further judicial action, where the court had overruled a demurrer to the petition and continues to exercise jurisdiction in a case, if lack of jurisdiction was apparent.

8. PROHIBITION (§ 10) — GROUNDS — LACK OF JURISDICTION.

To authorize the issuance of a writ of prohibition on the ground of lack of jurisdiction, the court must have taken some action asserting jurisdiction, so that the writ should not issue at a time when the judge had not passed upon a demurrer to the petition but had merely refused to rule thereon.

9. EVIDENCE (§ 41) — JUDICIAL NOTICE — TERMS OF THE COURT.

While the Supreme Court will judicially notice Rev. St. 1909, § 4150, providing the return terms of the circuit court of St. Louis City, it cannot take judicial notice of when a term ends unless the last part of one term extends into the beginning of the succeeding term.

10. PLEADING (§ 218)—DEMURRER—RULINGS.

Rev. St. 1909, § 1799, provides that defendant shall demur to or answer the petition on or before the third day of the term at which he is bound to appear, unless a longer time be granted and the action shall be triable at the return term. Section 4162 provides that suits in the circuit court shall be triable at the return term in cases in which defendants are served personally or by copies left at the place of business, etc., at least 15 days before the first day of such term, and section 1805 requires all demurrers to be determined during the term in which they are filed, and when filed in vacation to be determined at the next term after the filing thereof. Held, that the court or judge need not pass upon a demurrer in vacation or before the return term of the cause.

11. PROHIBITION (§ 12) — GROUNDS FOR DENYING WRIT.

Where the order to show cause on August 20, 1913, why a receiver should not be appointed, was made on August 18th, a writ of prohibition to restrain the court from acting because of lack of jurisdiction was improperly issued on August 19, 1913, since it must be presumed that the court would have acted according to law.

12. RECEIVERS (§ 35) — APPOINTMENT — NOTICE.

In cases of extreme necessity the court may appoint a receiver without notice.

13. RECEIVERS (§ 60)—APPOINTMENT—NOTICE —DURATION.

The court may appoint a receiver without notice for such time as will permit the appearance of the adverse party, and the making of a showing of cause against the continuation of the receivership.

14. PROCESS (§ 131) — RETURN — PREMATURE RETURN.

A non est return before the return day or time of commencing the action would be premature and unlawful.

15. PLEADING (§ 307)—PETITION—EXHIBITS.

As a rule, an exhibit attached to a petition is not a part of the petition, so as to prevent the petition from being bad on demurrer, when it would not otherwise be good, even though the petition states that the exhibit is a part of the petition, so that, unless an exhibit to the petition for prohibition becomes a part of the petition in the same manner as an exhibit is made a part of a pleading in an ordinary suit, it will not be deemed a part of the petition for the purpose of aiding it as against demurrer.

In Banc. Prohibition by the State, at the relation of Bert F. Fenn and others, against Eugene McQuillin, as Judge of the Circuit Court of the City of St. Louis, and others. Demurrer to petition sustained, and peremptory writ denied.

This is an original proceeding in prohibition, which was filed here on the 19th day of August, 1913, and our preliminary rule to show cause issued on that day. Relators are 6 out of 16 defendants, in a certain alleged action in equity for an accounting, for the appointing of a receiver for such of said defendants as are corporations, and for other purposes and uses hereinafter more specifically set out. This action in equity is now pending in the circuit court of the city of St. Louis, in division 6 thereof, which division is presided over by respondent, Judge Eugene McQuillin. Definitely as to when this equity suit was filed does not appear, except by inference that it was on or subsequent to August 5, 1913, and prior to August 12, 1913. It does appear that it was made returnable to the October term, 1913, of said court. Relators, in their petition filed here for their writ, set out their own descriptions and their several relations to this action and to the said equity suit, thus: "Come the relators herein, Bert F. Fenn, the Continental Commercial Company, a corporation organized under the laws of the state of Maine, August J. Waldschmidt, Adolph P. Erker, the American-Mexican Sugar Company and Walter C. Guels, and give the court to understand and be informed that Eugene McQuillin is one of the judges of the circuit court of the city of St. Louis, Missouri, duly elected, qualified and acting, and presiding in division No. 6 of said court; that J. Hugo Grimm is one of the judges of the circuit court of the city of St. Louis, Missouri, duly elected, qualified and acting and presiding in division No. 1 of said court, but sitting in division No. 6 of said court during the absence of Eugene McQuillin; that said Eugene McQuillin and J. Hugo Grimm, sitting in said division No. 6 of said circuit court of the city of St. Louis, Missouri, have taken cognizance of and entertain jurisdiction of a certain cause wherein Henry W. Meyer, Alexander H. Schott, Charles Bilhartz, E. H. Keisker, Jr., D. F. Dirkes, Joseph Lintzenick, B. A. Oehler, J. H. August Meyer, A. H. Heitkamp, P. C. Compton, H. L. Mintague and Charles Happel are plaintiffs and the relators herein, the Continental Commercial Company, A. J. Waldschmidt, Adolph P. Erker, Charles H. McKee, Bert F. Fenn, Charles F. Haanel, William A. Brandenburger, Walter C. Guels, J. E. Carnahan, Louis Essig, John Doe, trustee, American-Mexican Sugar Company, a corporation, the Jumiapa Plantation Company, a corporation, Continental Sugar Refining Company, a corporation, Oaxaca Coffee Culture Company, a corporation, and the Monte Rosa Company, a corporation, are defendants, said cause being serial No. 496, October term, 1913. That said plaintiffs in said last-named cause in the circuit court of the city of St. Louis, Missouri, filed their petition in said cause, setting forth that they are stockholders of the Continental Commercial Company, of the defendants named therein, and that relators herein, Waldschmidt, Erker, McKee, Fenn, Haanel, Brandenburger, Guels and Carnahan, are officers of said Continental Commercial Company and have controlled the affairs of said Continental Commercial Company." Since we have set out in the subjoined opinion the whole of the remainder of relators' petition, either in the exact words thereof, or in its substance and legal effect, and since all of the facts are to be found in our views as written in the subjoined opinion, we deem it unnecessary to duplicate these facts here.

Bert F. Fenn and James T. Roberts, both of St. Louis, for relators. George C. Mackay and W. G. Carpenter, both of St. Louis, for respondents.

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

I. The case has been argued and submitted and is now up for judgment upon two pleadings only. We are compelled to consider first the nature of these pleadings and the issues presented by them, before we reach the question of what the law is upon the case thus made. The only pleading of whatever sort filed by relators is the petition lodged here upon which we issued our preliminary rule on respondents to show cause why the peremptory writ of prohibition should not be awarded herein. The respondents upon the return day filed on their part a single pleading only, which first demurred to the whole petition, then denied the whole petition, and then answered the whole petition, by revamping and reiterating (as we note by comparison) the charges contained in the petition filed in the court nisi, action upon which latter by the lower court is here sought to be restrained.

While such practice is not to be commended, when we have regard to the several easy ways of getting at issue upon the law in this sort of case, there is yet authority for holding...