State v. McQuillin, No. 18390.

CourtMissouri Supreme Court
Writing for the CourtLamm
Citation171 S.W. 72
Docket NumberNo. 18390.
Decision Date01 December 1914
PartiesSTATE ex rel. WARDE et al. v. McQUILLIN, Circuit Judge, et al.
171 S.W. 72
STATE ex rel. WARDE et al.
v.
McQUILLIN, Circuit Judge, et al.
No. 18390.
Supreme Court of Missouri.
December 1, 1914.

1. PROHIBITION (§ 26) — MOTION FOR JUDGMENT ON PLEADINGS.

Where relators, seeking a writ of prohibition, move for judgment on the pleadings, the averments of the return are admitted to establish the facts.

2. PROHIBITION (§ 9) — NATURE OF WRIT.

The writ of prohibition is an extraordinary one, and should not issue except to keep an inferior court within its jurisdiction.

3. PROHIBITION (§ 10) — JURISDICTION, WANT OF.

An inferior tribunal's want of jurisdiction which would authorize the issuance of a writ of prohibition may exist with reference either to the subject-matter generally, to the parties to the suit, or to an excess of jurisdiction in the concrete case itself.

4. PROHIBITION (§ 3) — GROUNDS FOR ISSUANCE OF WRIT — OTHER REMEDY.

The writ of prohibition is a discretionary remedy, and should be refused, where the ordinary remedies of appeal, error, or certiorari are applicable.

5. PROHIBITION (§ 11) — GROUNDS FOR ISSUANCE OF WRIT.

Where the trial court had jurisdiction of the parties and subject-matter of a suit for an injunction, and no demurrer to the petition had been urged, prohibition will not lie on the theory that the trial court which issued a preliminary injunction on the petition and answer was without jurisdiction because the petition did not state a cause of action; for not only may the error, if any, in the determination of the trial court be taken advantage of by appeal, but question of the sufficiency of the petition is yet to be disposed of by the trial court.

Woodson, J., dissenting.

In Banc. Original application by the State of Missouri, on relation of George N. Warde and others, for a writ of prohibition against Eugene McQuillin, one of the judges of the circuit court of the city of St. Louis, and others. Preliminary writ quashed, and permanent writ denied.

O. J. Mudd and A. H. Jones, both of St. Louis, for relators. Milton B. Rosenheim, of St. Louis, and Jesse L. England, of Windsor, for respondents.

LAMM, C. J.


Defendants in an injunction suit pending in a division (to wit, respondent McQuillin's) of the St. Louis circuit court, as relators apply here by petition on August 14, 1914, for a writ prohibiting that court from proceeding further, and made the plaintiffs in said injunction suit parties respondent with Judge McQuillin. Presently, on that application, a preliminary rule issues in vacation to show cause. Presently respondents make return showing such cause as they had why our preliminary rule should not be made permanent. Thereupon relators file a motion for judgment on the pleadings. Thereby they insist that the preliminary rule should, as a matter of law, ripen into a permanent writ on the admissions and facts shown by the pleadings. Thereupon (without any evidence on, or determination of, controverted facts) the case is submitted on briefs and oral argument. Under such circumstances, the motion for judgment on the pleadings is a challenge, in legal effect, to the legal sufficiency of respondents return. Hence it is from admissions and allegations of that return we must get the facts, if at all. State ex rel. v. Shields, Judge, 237 Mo. 333, 334, 141 S. W. 585. Attending thereto, the case is this:

In July, 1914, respondents Albrecht and Stage, as members and trustees of St. Louis Lodge No. 3, Loyal Order of Moose, joining with them a domestic corporation, designated as "St. Louis Lodge No. 3, Loyal Order of Moose," as plaintiffs, brought suit in the St. Louis circuit court against relators in the

171 S.W. 73

instant case, to wit, Warde, Kiely, Stephens, Ripple, and the two named banks, the life of the bill being injunctive relief. Verified by affidavit, the substance and theory of the bill were that St. Louis Lodge No. 3, Loyal Order of Moose, hereinafter called "local lodge," is organized under the laws of this state as a domestic corporation having a fraternal, beneficiary character; that as such domestic corporation it owns valuable real estate in the city of St. Louis, improved by a clubhouse and outbuildings, said clubhouse containing billiard, pool, library, and lounging rooms, bowling alleys, "and other social features" to be "enjoyed" by the members of said corporation, which latter has a paid-up membership of over 2,100 souls in good standing, and certain named officers, among them three trustees (to wit, Albrecht, Stage, and Teasdale, the latter refusing to join as plaintiff); that while the title to the real estate is vested in the local lodge, the care, control, and custody of the personal property are in the named trustees, who have "sole jurisdiction" to invest the lodge moneys, handle trust funds, pay bills, and control the lodge property, the majority of said trustees having power to act. This local lodge had $2,700 deposited in the two banks joined below as defendants and here as relators. The "furnishings" in the clubhouse were of the value of $7,500. We infer that the foregoing bank deposits are covered by the term "surplus money of the lodge," including "sick benefits" and "funeral expense funds," and it was the duty of the said trustees as need called to invest said funds. Having further alleged that the money and personal property aforesaid are the property of the members of the local lodge, the bill goes on to aver that the said domestic corporation, the local lodge, had also received a "charter" from the "Supreme Lodge of the World, Loyal Order of Moose," a voluntary association of persons, authorizing it (said local lodge) to conduct such lodge in accordance with a ritual and form of government adopted by the supreme lodge; that on the 22d day of July, 1914, said supreme lodge, acting through defendant Warde (relator here) summarily, and without just cause or excuse, revoked the charter it had granted the domestic corporation, and thereupon proceeded to confiscate and take possession of its property, declaring the same to be forfeited to the supreme lodge; that thereupon said Warde, himself a nonresident of the state of Missouri, joining with him Stephens, Kiely, Ripple, relators here, and other persons unknown, by trespass wrongfully gained control of the clubhouse and the property of the local lodge, and by continuing their trespass with force and arms without warrant of law are holding possession and are denying to the members of said local lodge access to said premises, and using armed force in that behalf; that said trespassers are insolvent; that two of them, Warde and Stephens, have wrongfully appropriated some of said funds in said banks, and are about to appropriate, and unless restrained will appropriate, the rest of them, so, as aforesaid, the sole and absolute property of the members of the local lodge. The bill avers, furthermore, that by such trespassing and force members of the local lodge are and will be deprived of their rights of ingress and egress to the lodge property; that the act of confiscation by the supreme lodge through Warde was arbitrary and capricious, and that the greater part of the members of the supreme lodge are not residents of the state; that there is no redress for such wrongful acts except through a court of equity.

The bill was filed, as said: (1) On behalf of the local lodge; (2) the controlling majority of the board of trustees, who sued not only as such but as members of the local lodge; and (3) on behalf of any other members who care to join and share the burdens and privileges arising therefrom. It prays for a temporary injunction enjoining defendants from trespassing upon the property and interfering with the entrance thereto of any of the members of the local lodge and from...

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30 practice notes
  • State ex rel. St. Louis-San Francisco Ry. v. Russell, No. 41176.
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1949
    ...which error may be corrected on appeal. State ex rel. v. Skinker, 341 Mo. 28, 106 S.W. (2d) 409; State v. McQuillin, 262 Mo. 256, 171 S.W. 72. (9) There are no fact issues determined by a commissioner and neither side has requested one. Hence, all well pleaded allegations of the return must......
  • State ex rel. Brickey v. Nolte, No. 38252.
    • United States
    • Missouri Supreme Court
    • March 2, 1943
    ...ex rel. Mueller v. Wurdeman, 232 S.W. 1002; State ex rel. Elam v. Henson, 217 S.W. 17; State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191; Wand v. Ryan, 166 Mo. 646, 65 S.W. 1025; State ex rel. Laclede Bank v. Lewis, 76 Mo. 3......
  • State ex rel. Kansas City Pub. Serv. Co. v. Waltner, No. 37566.
    • United States
    • Missouri Supreme Court
    • March 25, 1943
    ...McQuillin (Banc, 1912), 246 Mo. 517, 532 (a), 152 S.W. 347, 351 (a); State ex rel. Warde v. McQuillin (Banc, 1912), 262 Mo. 256, 266(a), 171 S.W. 72, 74(a). Consistent with the discretion to be exercised, a policy of inclusion and exclusion has been adopted in arriving at the issuance or wi......
  • State ex rel. Poston v. District Court of Eighth Judicial District, Fremont County, 1248
    • United States
    • United States State Supreme Court of Wyoming
    • July 1, 1924
    ...may exist with reference to subject-matter generally or to excess of jurisdiction in the case itself, State v. McQuillin, (Mo.) 171 S.W. 72; prohibition will lie to prevent trial on appeal for want of sufficient notice, State v. Court (Wash.) 48 P. 733; Parker v. Marco, 136 N.Y. 585; People......
  • Request a trial to view additional results
30 cases
  • State ex rel. St. Louis-San Francisco Ry. v. Russell, No. 41176.
    • United States
    • United States State Supreme Court of Missouri
    • March 14, 1949
    ...which error may be corrected on appeal. State ex rel. v. Skinker, 341 Mo. 28, 106 S.W. (2d) 409; State v. McQuillin, 262 Mo. 256, 171 S.W. 72. (9) There are no fact issues determined by a commissioner and neither side has requested one. Hence, all well pleaded allegations of the return must......
  • State ex rel. Brickey v. Nolte, No. 38252.
    • United States
    • Missouri Supreme Court
    • March 2, 1943
    ...ex rel. Mueller v. Wurdeman, 232 S.W. 1002; State ex rel. Elam v. Henson, 217 S.W. 17; State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191; Wand v. Ryan, 166 Mo. 646, 65 S.W. 1025; State ex rel. Laclede Bank v. Lewis, 76 Mo. 3......
  • State ex rel. Kansas City Pub. Serv. Co. v. Waltner, No. 37566.
    • United States
    • Missouri Supreme Court
    • March 25, 1943
    ...McQuillin (Banc, 1912), 246 Mo. 517, 532 (a), 152 S.W. 347, 351 (a); State ex rel. Warde v. McQuillin (Banc, 1912), 262 Mo. 256, 266(a), 171 S.W. 72, 74(a). Consistent with the discretion to be exercised, a policy of inclusion and exclusion has been adopted in arriving at the issuance or wi......
  • State ex rel. Poston v. District Court of Eighth Judicial District, Fremont County, 1248
    • United States
    • United States State Supreme Court of Wyoming
    • July 1, 1924
    ...may exist with reference to subject-matter generally or to excess of jurisdiction in the case itself, State v. McQuillin, (Mo.) 171 S.W. 72; prohibition will lie to prevent trial on appeal for want of sufficient notice, State v. Court (Wash.) 48 P. 733; Parker v. Marco, 136 N.Y. 585; People......
  • Request a trial to view additional results

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