State v. Riley

• Decision Date: 19 November 1907
• Citation: 105 S.W. 696,127 Mo. App. 469
• Parties: STATE ex rel. FENN v. RILEY et al.
• Court: Missouri Court of Appeals

105 S.W. 696

127 Mo. A. 469

STATE ex rel. FENN v. RILEY et al.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

1. PROHIBITION — JURISDICTION OF EQUITY — INJUNCTION.

Equity has jurisdiction upon a proper showing in the proper forum to prevent by injunction a multiplicity of suits, and a court of equity cannot be prohibited from hearing a cause which applies for injunctive relief against such a grievance.

2. SAME.

The fact that there is no merit in a suit for injunction, or that the petition therefor is demurrable, will not authorize the granting of a writ of prohibition; such matters not being jurisdictional, but being for the court of first instance subject to review by the court of last resort.

3. SAME.

A writ of prohibition to prohibit a circuit court from entertaining an injunction suit will be granted only where such court has no jurisdiction of the suit, or where an order has been issued therein in excess of its jurisdiction.

4. SAME — GROUNDS FOR RELIEF — EXCESS OF JURISDICTION.

Under Rev. St. 1899, § 3631 [Ann. St. 1906, p. 2049], providing that an injunction to stay a suit shall be had in the county where the suit is pending, an order granted by the circuit court of New Madrid county restraining the prosecution of an action in the circuit court of the city of St. Louis until the final determination of a cause pending in the Supreme Court is beyond the jurisdiction of the court granting the order, where the injunction is the primary purpose of the suit, and not incidental to some other relief, and a writ of prohibition will issue against further entertaining the matter.

5. SAME—WAIVER OF RIGHT TO PROHIBITION —FAILURE TO PLEAD TO JURISDICTION.

Where a circuit court in clear excess of its jurisdiction granted a preliminary injunction restraining the prosecution of a suit in another jurisdiction, the Court of Appeals will in its discretion grant a writ of prohibition to the court granting the injunction, though no plea to the jurisdiction was made and overruled in the proceedings in such court.

Original application to the St. Louis Court of Appeals by the state, on the relation of Bert F. Fenn, to prohibit Henry C. Riley and others from proceeding with a certain cause in the circuit court of New Madrid county. On an order to show cause why a preliminary writ of prohibition should not be made absolute. Rule made absolute.

John M. Dickson, for relator. Jno. A. Hope, for respondent.

GOODE, J.

One of the judges of this court in vacation issued a preliminary writ of prohibition to respondents prohibiting them, and each of them, from further proceeding or entertaining jurisdiction in a certain cause pending in the circuit court of New Madrid county, wherein Bert F. Fenn, Robert S. Rutledge, M. W. Powell, administrator of the estate of Mal H. Powell, deceased, and T. W. Corley, are defendants, and to show cause before this court at the October term why the rule of prohibition should not be made absolute. The respondents appeared and showed cause by their several returns to the preliminary writ, to which the petitioner has filed demurrers. The petitioner, Bert F. Fenn, is an attorney residing in the city of St. Louis. The respondent James V. Conran is an attorney residing in the city of New Madrid, the respondent Henry C. Riley is judge of the circuit court of New Madrid county, and the respondent J. H. Biship is judge of the probate court of said county. On August 3, 1907, James V. Conran instituted a suit for an injunction in the circuit court of New Madrid county against the parties whose names we have given, to wit, Robert S. Rutledge, Bert F. Fenn, M. W. Powell, administrator of the estate of M. H. Powell, deceased, J. O. More, and T. W. Corley. As the circuit court of New Madrid county was not in session at the time nor the judge of it within said county, Conran applied to the Honorable J. H. Biship, judge of the probate court, for a preliminary writ of injunction, and, on Conran filing an injunction bond in the sum of $5,000, the writ was granted, and the papers certified to the circuit court of the county, where the cause is still pending. It appears from the return of Judge Biship that the only knowledge he had regarding the merits of Conran's cause of action was what appeared in the petition for an injunction. However, notice of the application for the writ had been given to the defendants in the suit against whom the writ was granted, or some of them. It further appears from said return that Judge Biship had no connection with the matter, except to grant the preliminary writ, which was returned with bond to the clerk of the circuit court, as provided by the statutes. Rev. St. 1899, §§ 3628, 3629 [Ann. St. 1906, pp. 2048, 2049]. It appears from Judge Riley's return that he had issued no orders, nor taken any steps in the injunction suit at the time of the filing of the petition for the writ of prohibition. The suit was simply pending in the New Madrid circuit court, to be taken up in due course of business and disposed of according to law.

From the petition filed in this court by Fenn for the writ of prohibition, and the petition filed by Conran in the circuit court of New Madrid county for the writ of injunction, we gather all the facts pertinent to the present controversy which are before us. These facts are intricate, and, as presented to us, obscure. Conran's petition in his injunction suit recites that in the year 1903 he and Mal H. Powell (who was a woman and is now deceased) had certain business transactions, and that the same were evidenced by a contract which is in the possession of Fenn; that on June 10, 1903, a new transaction took place which superseded the prior one, and on said date Mal H. Powell executed and delivered to Conran a quitclaim deed, conveying lands in New Madrid county and Pemiscot county, and on the same day Conran executed and delivered to Mal H. Powell a contract in writing which is now in the possession of Fenn; that thereafter, from time to time, for almost a year, Mal H. Powell accepted the benefit of the contract of June 10th with the full knowledge of Fenn, who was her confidential friend and legal adviser; that some time in 1904 she and Fenn, being in need of money, made a demand on Conran for the payment of sums which he did not owe; that thereafter Fenn tried to coerce Conran to pay such sums by threats, and by stating that Conran had forged a deed on June 10, 1903, and making similar charges; that, having failed to extort money from Conran by threats, Mal H. Powell and Fenn instituted two suits before a justice of the peace in the city of St. Louis, one for $200 and one for $55; that the actions were tried with the result that judgment was given in both of them for Conran, and an appeal taken in one, which is now pending in the circuit court of the city of St. Louis. The nature of those actions is not disclosed.

Conran's petition in the injunction suit then proceeds to recite various suits, perhaps four or five others, instituted by Fenn and Mal H. Powell against him in the courts of St. Louis, and also the procurement of an indictment against him. Said petition further recites the institution of actions by Conran against Fenn in the circuit court of New Madrid county, and the filing of a criminal information against Fenn and Mal H. Powell by the prosecuting attorney of said county, charging them with criminal slander, of which they were found guilty on the trial in the circuit court, but the judgment was reversed by this court. It is further stated in Conran's petition for injunction that he had instituted a certain other suit against Fenn and Mal H. Powell in New Madrid county, in three counts—one for slander, one "for conspiracy to defraud and indict" Conran, and one for malicious prosecution—that this action went to Ste. Genevieve county on a change of venue, where it was tried and judgment obtained by Conran on the counts for slander and conspiracy, he taking a non-suit on the count for malicious prosecution, but afterwards instituting another action on said ground. It is further stated in the petition for injunction that Fenn and Mal H. Powell appealed from the judgment of the Ste. Genevieve circuit court on the counts for slander and conspiracy to the Supreme Court, where the cause is now pending. After alleging these various suits and countersuits and criminal charges, the petition for injunction avers that on July 10, 1907, Fenn filed another action against Conran in the circuit court of the city of St. Louis for slander, which action is still pending. The general purport of Conran's petition is that the different actions...