State v. Ossing

• Decision Date: 05 April 1929
• Docket Number: No. 29092.,29092.
• Citation: 16 S.W.2d 77
• Parties: STATE ex rel. PARADISE CATERING CO. v. OSSING, Judge.
• Court: Missouri Supreme Court

16 S.W.2d 77

STATE ex rel. PARADISE CATERING CO. v. OSSING, Judge.

No. 29092.

Supreme Court of Missouri, Division No. 2.

April 5, 1929.

Action by the State, on the relation of Paradise Catering Company, against Hon. Erwin Ossing, Judge of the Eighth Judicial Circuit, presiding in Division No. 14 of the Circuit Court of the City of St. Louis. Preliminary rule in prohibition made absolute.

Charles E. Morrow and B. E. Hamilton, both of St. Louis, for relator.

Taylor R. Young, of St. Louis, for respondent.

COOLEY, C.

This is an original proceeding in prohibition, in which Paradise Catering Company, a corporation, is relator, and Hon. Erwin Ossing, Judge of the Eighth Judicial circuit, presiding in division 14 of the circuit court of the city of St. Louis, is respondent. The writ is sought to prohibit the enforcement of an order of the circuit court made in a case pending therein entitled "Louis E. Trieseler, receiver of the copartnership estate of William Thedor, Harry Brown and Louis Mackris, plaintiff, v. Paradise Catering Company, a corporation, George Zisoff, William Thedor and Charles Rappas, defendants." For convenience and brevity this suit will be herein referred to as the Trieseler suit. Relator contends that the court exceeded its jurisdiction in making the order. The case is before us on the pleadings alone, except for copies of two circuit court records which will be referred to later. There is no formal demurrer nor motion for judgment.

Upon the filing here of relator's petition for writ of prohibition, this court issued its preliminary rule, to which respondent made return as directed. Thereafter relator filed a motion to strike out a certain portion of the return (Exhibit A therein referred to), which motion was by the court ordered taken with the case; and later filed reply to the return.

Both parties have attempted to incorporate in and make part of their respective pleadings certain exhibits by referring to them as so attached and made part thereof. This would not be sufficient as against a demurrer. State ex rel. v. McQuillan, 256 Mo. 693, loc. cit. 707 et seq., 165 S. W. 713. But since both parties have followed this procedure, and neither has demurred or otherwise objected to such method of pleading by his adversary, we shall, for the purpose of this case, treat such exhibits as parts of the record.

In the manner in which the case is presented here we have a situation quite similar to that in State ex rel. v. Shelton, 238 Mo. 281, 142 S. W. 417. Following the suggestion of that case, absent as here a demurrer or motion for judgment, we may, ex gratia, treat the reply, or at least the prayer therein for an absolute writ, as such motion, and, sifting out from the pleadings the conceded facts, determine the legal questions presented thereby.

The Trieseler suit was filed and the order here complained of was made on April 6, 1928. Prior thereto there had been filed and there was then pending a suit brought by Harry Brown and Louis Mackris, plaintiffs, against George Zisoff, William Thedor, and Paradise Catering Company (this relator), defendants. Later, one Charles Rappas was brought in as a defendant. This suit is referred to in the pleadings as Brown et al. v. Zisoff et al., and for convenience will be called herein the receivership suit. The pleadings and court orders in this receivership suit and the petition in the Trieseler suit are referred to by relator and respondent in their pleadings here.

It appears from relator's petition, in substance, that Thedor, Brown, and Mackris had been partners in the ownership and operation of a restaurant business at 32 South Sarah street, St. Louis, Mo., having a ten-year lease on the premises, a well-equipped plant, and a good business. But about June or July, 1927, they became involved financially, owing considerable money, and Thedor refused to contribute his share of funds necessary to take care of these debts and continue the business. With matters in this situation, Thedor, Zisoff, and Rappas formed a design and entered into a conspiracy to force Brown and Mackris out of the partnership, and to obtain for themselves the property and business. The pleadings in the receivership suit set out at considerable length the alleged fraudulent acts, conduct, and misrepresentations by which it is claimed this purpose was accomplished, resulting in the surrender by Brown and Mackris of their interests in the partnership and its property to Zisoff and his confederates, the latter agreeing to pay off the partnership debts. It is alleged that Zisoff, Thedor, and Rappas, having, by the various means alleged, obtained title to and possession of all of the partnership assets and the withdrawal of Brown and Mackris, organized relator corporation, issued the stock to themselves, and caused all of the assets and business to be conveyed to relator, which has since been operating the plant and business as owner. The partnership creditors were left unpaid.

Some time after the property and business had been acquired by relator, Brown and Mackris instituted the receivership suit above mentioned, asking for appointment of a receiver to take charge of the partnership assets, for the sale of same, payment of partnership creditors, dissolution of the partnership, and accounting, etc. Relator was made one of the defendants. The case was assigned to Division 2 of the court, presided over by his honor, Judge Mix, who issued an order to defendants to show cause, on a day named, why a temporary receiver should not be appointed. This order to show cause, after some continuances, came on for hearing before Judge Mix on April 5, 1928. It is alleged in respondent's return that the hearing lasted three days, being concluded late in the afternoon of April 8. The return thus states the disposition made of the matter upon the conclusion of that hearing: "Respondent further states that at the conclusion of said hearing on said order to show cause, his Honor, Judge Mix, understanding that the cause was being tried on the merits, proceeded to grant all of the relief asked for by plaintiffs in the case of Brown, et al., v. Zisoff and relator, et al., but upon his attention being called to the fact that the Court had no jurisdiction to make such an order in the premises on a hearing on an order to show cause, contented himself with the appointment of Mr. Trieseler as Receiver, and in said original order in said cause made the same order in said case of Brown, et al. v. Zisoff, et al., as was made in the case of Trieseler, Receiver, vs. Relator, et al., appearing on page 4 of said petition and writ of prohibition, but at the suggestion of counsel for relator struck out said portion of said order and notified counsel for Brown and Mackris that it would be necessary for the Receiver to institute an independent suit to take possession of the alleged property of said relator, which was accordingly done."

Upon his appointment as receiver for the partnership, Trieseler qualified, and, apparently on the same day, filed the suit against relator, Zisoff, Thedor, and Rappas above referred to as the Trieseler suit, asking that: First, a temporary injunction issue (to be made permanent on final hearing) restraining defendants from selling or disposing of the property; second, that defendants be ordered to surrender and give immediate possession of said property and business to plaintiff, and that plaintiff be authorized to operate and dispose of same and apply the proceeds as therein set out; third, for divestiture of title out of relator and the vesting of same in plaintiff; and for general relief.

Immediately upon the filing of Trieseler's petition and without notice to relator or service of summons on it or the other defendants, the court made this order: "It is further ordered by the Court, conditioned upon plaintiff giving a good and sufficient bond in the penal sum of $1,000.00 with surety to be approved by the Court, Judge or clerk thereof in vacation, that the defendants be and they are hereby ordered and directed to surrender and give immediate possession to plaintiff of all the assets of the restaurant business situated and located at No. 32 South Sarah street, City of St. Louis, Missouri, used or intended to be used in connection with the operation of said restaurant, also the leasehold in premises No. 32 South Sarah street in the City of St. Louis, Missouri."

It is the order just quoted that relator here seeks to have respondent prohibited from enforcing, claiming that it was made without notice to relator and without giving it an opportunity to be heard, and therefore violates article 5 of the Amendments to the United States Constitution, and section 30, article 2, of the state Constitution, deprives relator of its property without due process of law, and that the court had and has no jurisdiction so to make and enforce it.

After this order was made, and on April 10, relator filed a motion to vacate same and set it aside. Then the cause was transferred to Division 14 of the court, presided over by respondent, where, on May 14, 1928, respondent...