State v. Rassieur

• Decision Date: 09 February 1916
• Docket Number: No. 19000.,19000.
• Citation: 184 S.W. 116
• Parties: STATE ex rel. POWERS v. RASSIEUR, Judge, et al.
• Court: Missouri Supreme Court

184 S.W. 116

STATE ex rel. POWERS v. RASSIEUR, Judge, et al.

No. 19000.

Supreme Court of Missouri.

February 9, 1916.

Rehearing Denied March 30, 1916.

In Banc. Petition for prohibition by the State, at the relation of Anthony W. Powers, against Leo S. Rassieur, Judge of the Circuit Court, City of St. Louis, and Charles H. Turpin. Petition dismissed.

This is an original proceeding in this court, whereby it is sought to prohibit respondent Rassieur from taking further steps to enforce a judgment rendered by him in a proceeding to contest an election, wherein respondent Turpin herein was contestant and relator was contestee, pending a motion for a new trial in such proceeding. The petition for our writ is lengthy, and we need not take up space in setting out the whole of it. In substance it recites that respondent Leo S. Rassieur was one of the judges of the circuit court of the city of St. Louis, presiding over division 4 thereof; that a proceeding was brought therein by respondent Charles H. Turpin as contestant against A. W. Powers, relator herein, as contestee, to determine the right of said contestant, as against said contestee, to the office of constable of the Fourth constabulary district of the city of St. Louis; that said contest proceeding was duly submitted to respondent Rassieur on July 17, 1915, and after having heard all the evidence therein respondent Rassieur did on the 4th of August enter judgment in favor of contestant, against relator, ousting him; that on the 5th day of August, 1915, relator filed a motion for a new trial of said cause, but that pending said motion for a new trial, and prior to any ruling thereon, respondent Leo S. Rassieur caused to be served upon relator a copy of said judgment, and caused demand to be made on said relator that he immediately vacate the office of constable of the Fourth district aforesaid, and turn over all books, papers, and records pertaining to the office of constable aforesaid to respondent Turpin; and that respondent Rassieur has threatened and was at the time threatening to cause relator to be forcibly removed from the office of constable of the said Fourth district and was threatening and intending to make, and was about to make, other and further orders, and to issue attachments and process designed to further interfere with and molest relator in his possession of the books, records, papers, property, and effects pertaining to the said office of constable, and that all of said acts and conduct and orders of respondent Rassieur were each and every one premature and illegal, and without lawful warrant and authority, for that no final judgment had been rendered in said election contest, and the rights of the parties therein had not been finally determined in the court of original jurisdiction.

This is in substance the allegations of the petition for our writ of prohibition, in so far as said allegations refer to Judge Rassieur's acts in the premises. The contestant in the election proceeding before Judge Rassieur, one Charles H. Turpin, was also made a respondent in the instant action. Other allegations are made in the petition for our writ, setting out his alleged officious intermeddling with the office of constable aforesaid, and with the papers, books, and files pertaining to said office; but since they but follow in sequence and substance the allegations made as to the alleged acts of respondent Rassieur (except in Turpin's attitude touching a certain motion to quash, hereinafter referred to), we do not think we need cumber the books with them. The prayer of relator's petition for our writ will be found set out in our discussion of the case.

We may say, in passing, that our preliminary writ herein was issued without notice; allegations meet for such action having been made in relator's petition for the writ. This action is smartly attacked as an infringement of our own rule No. 34 (169 S. W. xii). Since this rule goes to our discretion, and was designed largely for our convenience in the issuance of original writs, and since this rule contains a saving clause, properly met in our opinion by the allegations of the petition when the writ was applied for, and issued, it is a little difficult to see how the fact of issuance without notice could ever be a valid ground of quashal, short of downright fraud upon the court, we may as well, with this explanation, let this phase of the case drop out of view. For reasons which will appear in our opinion we need not set forth any further facts in our statement, as all points necessary to an understanding of the conclusions we reach will be found set out in our discussion of the case.

Thomas A. Dwyer, Ernest A. Green, and Holland, Rutledge & Lashly, all of St. Louis, for relator. George B. Webster, of St. Louis, for respondents.

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

I. There are before us, composing the whole of the pleadings in this case: (a) The petition of relator, praying that our preliminary rule issue; (b) our preliminary rule, which follows the prayer of the petition as to the acts temporarily prohibited by us; (c) a "motion to recall and quash the preliminary rule," which motion was filed by respondents on the 8th day of September, 1915; and (d) the separate returns of respondents herein, filed by them on the 4th and 11th days of October, 1915, respectively. That is all. Respondent Turpin avers in his return that he "saves to himself the benefit of his motion heretofore filed herein to recall and quash the preliminary rule." Respondent Rassieur makes his separate return long subsequent to joining in the said motion to recall and quash, and without in any wise referring to that motion. Turpin, though averring that he has not by his return waived any grounds of quashal urged in the said motion theretofore filed, does not in his return set forth or even refer to any matters meet for quashal, as (and which were) alleged in the motion to quash. The return of Turpin, after admitting conventional matters as alleged by relator, down to the rendition of the judgment, denies that respondent Rassieur did any act whatever toward enforcing the judgment rendered in the case pending the motion for a new trial therein, but avers the fact to be that respondent Rassier immediately left the state upon his vacation, without taking any further steps or doing any further acts in the case, and that he did not return till some time in September, 1915. Turpin denies that he himself did any act or meddled officiously in the premises.

Parenthetically, we may say that we are pretty clear that Turpin's acts done in the premises, and when disconnected from those of Rassieur, could not confer jurisdiction in us to prohibit Turpin. For, while we are not called on to rule upon the question whether Turpin is a necessary party in an original proceeding by prohibition, it would seem he is not. This for the reason that the writ runs from a court of superior to a court of inferior jurisdiction solely to prevent the inferior court from assuming a jurisdiction it has not, or from exceeding a jurisdiction it has. In short, to curb acts of an inferior court which, being in excess of jurisdiction, are ipso facto void. The right of Turpin to be a necessary party must be bottomed upon some such assumption that his vested rights are being affected by the action and that for this he is entitled to be present when such rights are dealt with. Could Turpin, or any other private and unofficial litigant in an action which is halted by our writ of prohibition, for that such action is being maintained in a manner which makes it void, or by a court which has no authority over it, have any rights or...