State v. Riley

• Decision Date: 22 October 1925
• Docket Number: No. 3994.,3994.
• Citation: 276 S.W. 881
• Parties: STATE ex rel. McELVAlN v. RILEY, Circuit Judge.
• Court: Missouri Court of Appeals

276 S.W. 881

STATE ex rel. McELVAlN v. RILEY, Circuit Judge.

No. 3994.

Springfield Court of Appeals. Missouri.

October 22, 1925.

Rehearing Denied November 18, 1925.

Original proceeding by the State, on the relation of Clyde T. McElvain, against Henry C. Riley, Judge of the Circuit Court of Pemiscot County, for a writ of prohibition. Permanent writ granted, with directions.

Von Mayes, of Caruthersville, for relator.

Ward, Reeves & Oliver, and Shepard & Hawkins, all of Caruthersville, for respondent.

BAILEY, J.

This is an original action in this court for writ of prohibition. The relator was defendant in a certain divorce suit filed in the circuit court of Pemiscot county, in which suit the bonds of matrimony theretofore existing between him and the plaintiff therein had been severed by decree of court. The petition in this case is directed against Hon. Henry C. Riley, judge of the circuit court of Pemiscot county. On the face of the pleadings and on proper showing this court issued its preliminary rule in prohibition. Respondent's return was by way of demurrer. The facts set forth in the petition may therefore be taken as confessed. The petition (caption omitted) is as follows:

"Now on this day comes the above-named relator and represents and shows to the court that one Lee McElvain, his former wife, filed g suit against relator in the circuit court of Pemiscot county, Mo., returnable to the July term, 1924, of said court, praying to be divorced from the bonds of matrimony contracted by the said Lee McElvain with this relator; that at the said July term of said court said cause came on for trial, and the court after hearing the testimony granted the plaintiff in said cause, Lee McElvain, a divorce from said bonds of matrimony;" that thereafter, on the 4th day of August, 1925, the said Lee McElvain, by her attorneys, Ward, Reeves & Oliver and Shepard & Hawkins, filed in said court a motion praying the court to require defendant, this relator, to pay to said plaintiff the amount she had expended in caring for and maintaining the minor children of relator and said Lee McElvain since the decree of said divorce, and that the Citizens' Trust Company, a banking corporation in the city of Caruthersville, Pemiscot county, Mo., which was not a party to said divorce suit, be ordered to make no further payments to this relator out of moneys that might be due from said trust company to relator until the further order of the court; that the said Lee McElvain by her said attorneys on the same day, the 4th day of August, 1925, also caused to be filed a certified copy of an order made by the court upon and after hearing said motion without requiring the filing of any bond, showing by the return thereon of the sheriff of said county that he had served a copy of said order on the said Citizens' Trust Company the 4th day of August, 1925; that the order made upon said motion commanded the said Citizens' Trust Company to make no further payments to relator of the money coming into its hands due said relator until the further order of the court; that after said order was made by the said court the relator, by his attorney, Von Mayes, filed a motion or application in said cause, praying the court to revoke and set aside said restraining order on said Citizens' Trust Company on the grounds that said restraining order was made without requiring a bond to be first filed, and because no bond was filed, and because the said Citizens' Trust Company was not a party to said action or divorce suit, and because the court was without jurisdiction to make such order, which motion the court overruled on the 28th day of August, 1925, and on the same day adjourned said court to the next regular term thereof, which begins on the third Monday of November next; that the relator at the time the court overruled the motion last aforesaid duly objected and excepted to the said action of the court in overruling the said motion; that by the reason of the facts aforesaid the court exceeded its jurisdiction in making said restraining order upon the said Citizens' Trust Company, and the relator has no adequate remedy at law; and that he is entitled to the state's writ of prohibition to Hon. H. C. Riley, as judge of said court, directing him to set aside and annul said restraining order; and that he be prohibited from further maintaining the same, and for such other relief as may be proper in the premises.

"Wherefore relator prays the aid of this honorable court, and that he have the state's writ of prohibition directed to the respondent prohibiting him as said judge from further maintaining said restraining order, and directing him to set aside and annul the same, and for general relief.

                         "Von Mayes, Attorney for Relator."
                

That part of the order of the learned circuit judge to which objection is made is as follows:

"The court, after seeing and hearing said petition, and being advised in the premises, considers that the court retains jurisdiction of both plaintiff and defendant and this cause of action, and orders that the Citizens' Trust Company, as executor of estate of J. M. McElvain, deceased, make no further payments to the defendant Clyde McElvain out of the money coming into its hands as executor of the estate of J. M. McElvain, or as trustee under the will of the said J. M. McElvain, until further ordered by this court."

It is first contended...