State v. Sale

• Decision Date: 30 December 1910
• Citation: 133 S.W. 119,153 Mo. App. 273
• Parties: STATE ex rel. RIEFLING v. SALE, Judge.
• Court: Missouri Court of Appeals

133 S.W. 119

153 Mo. A. 273

STATE ex rel. RIEFLING v. SALE, Judge.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

1. APPEAL AND ERROR (§ 436)—EFFECT OF APPEAL ON JURISDICTION OF TRIAL COURT.

Whatever a judgment appealed from covers, the appeal embraces, and the jurisdiction of the trial court over all matters so covered and embraced is suspended pending the appeal; but matters in the cause independent of and distinct from the questions involved in the appeal are not taken from the jurisdiction of the trial court by pendency of the appeal.

2. APPEAL AND ERROR (§ 442)—EFFECT OF APPEAL ON JURISDICTION OF TRIAL COURT —MATTERS INVOLVED.

Pending an action by R. against H. and J., partners, for damages, H. brought suit against J. for dissolution of the partnership, in which a receiver was appointed. Thereafter, in bankruptcy proceedings, J. was adjudged a bankrupt; and his trustee in bankruptcy filed a petition in the suit of H. against J. for an order on the receiver to pay to him J.'s half of the partnership assets, which, over the opposition of H., was granted, and H. appealed. Thereafter R., having obtained judgment in his action against H. and J., filed an intervening petition in the suit of H. against J. praying that the receiver be directed to pay the judgment out of the assets in his hands. Held that, while the trial court was without jurisdiction to set aside the order appealed from, it had jurisdiction to entertain R.'s petition; the appeal involving only the right of the trustee, as against H., to have J.'s share of the partnership assets; while R.'s right, if existing at all, was against all of them.

3. JUDGMENT (§ 252)—PRAYER FOR RELIEF.

That a petition, along with a proper prayer for relief, includes a prayer for action which the court is without jurisdiction to take, does not deprive the court of jurisdiction to entertain the petition, and grant such proper relief.

4. MANDAMUS (§ 3)—ADEQUATE REMEDY AT LAW.

To deprive one of remedy by mandamus on the ground of adequate remedy at law, the other remedy must be equally convenient and effective; and this is not the case where one, seeking to have the court compelled to entertain a petition to order a receiver to pay a judgment out of a fund in his hands, could resort to bankruptcy proceedings, but would there find only part of the fund.

5. MANDAMUS (§ 5)—PENDENCY OF OTHER ACTION.

The other action or proceeding involving the same question, pendency of which will prevent issue of a writ of mandamus, must be one to which relator in mandamus is a party, or by which he may be bound.

6. MANDAMUS (§ 31)—COMPELLING COURT TO ACT—MATTERS FOR CONSIDERATION.

After R. had commenced action against H. and J., partners, for damages, H. commenced suit against J. for dissolution of the partnership, and J. instituted bankruptcy proceedings; and, before R. recovered judgment, J. was adjudged a bankrupt, and a trustee appointed for him, and the partnership dissolved, and a receiver appointed in the partnership suit, who on petition of J.'s trustee was directed to pay to him J.'s half of the partnership assets. Thereafter R., obtaining judgment in his action, filed an intervening petition in the partnership suit, praying that the receiver be ordered to pay the judgment out of the fund in his hands. Held that, whether R.'s intervening petition came too late, or whether he was a creditor when the firm was dissolved, or when J. was adjudged a bankrupt, were questions relating only to whether such petition should be sustained, and were for the trial court in the first instance, and were not matters for consideration in mandamus proceeding to compel the trial court to entertain such petition, which it refused to do on the ground of want of jurisdiction.

Original mandamus proceeding, on the relation of George B. Riefling, against Moses N. Sale, Judge of Division No. 5 of the Circuit Court of the City of St. Louis. Writ awarded.

This is an original proceeding by mandamus begun in this court, the purpose of which is to compel the respondent, the Honorable Moses N. Sale, judge of Division No. 5 of the circuit court of the city of St. Louis, to take cognizance of, consider, determine and decide on its merits, a certain intervening petition, filed by relator, George B. Riefling, in the suit of Francis Hemm v. Richard F. Juede.

From August 31, 1907, to July 20, 1908, Francis Hemm and Richard F. Juede were in partnership, carrying on a retail drug business in the city of St. Louis. On July 15, 1908, relator commenced suit against Juede in the circuit court of said city to recover damages for personal injuries sustained through the negligence of Juede, acting as a member of said firm, in compounding and filling a physician's prescription. Subsequently, on July 20, 1908, Hemm brought suit in said circuit court against Juede to dissolve the partnership, and such proceedings were had therein that on August 3, 1908, the partnership was dissolved, and a receiver was appointed and ordered to take charge and dispose of the assets of the partnership and distribute the proceeds, after deducting the costs, equally between the partners. On September 26, 1908, the receiver filed a report, showing that he had paid the debts of the partnership aggregating $1,178.25, and that with the receivership expenses deducted he still had in his hands $6,452.38. On September 30, 1908, relator filed an amended petition in the damage suit, making Richard F. Juede and Francis Hemm, doing business under the style and firm name of Hemm & Juede, parties defendant, and thereafter on the same day relator filed a motion in the suit of Hemm v. Juede praying leave to join the receiver as a party defendant in the damage suit. On February 1, 1909, the suit of Hemm v. Juede was transferred from Division No. 7, Judge Kinsey presiding, to Division No. 5, Judge Sale presiding, where the damage suit was pending. On January 16, 1909, Juede filed a voluntary petition in bankruptcy in the District Court of the United States, and was adjudged a bankrupt. On February 2, 1909, Hemm filed in his suit against Juede a motion praying for an order directing and instructing the receiver to retain all money in his possession as receiver of the assets of the firm of Hemm & Juede until further order of the court, and praying that the receivership should continue until such time as the damage suit should be determined. On February 11, 1909, the trustee in bankruptcy of Juede filed a petition in the suit of Hemm & Juede praying an order on the receiver to turn over to him $3,295.28, being Juede's half of the partnership assets. On July 6, 1909, in the suit of Hemm v. Juede the motion of Hemm to continue the receivership, etc., and the petition of relator for leave to join the receiver as party defendant in the damage suit, were overruled, and the petition of the trustee in bankruptcy for an order on the receiver to turn over to him Juede's half of the partnership assets was granted, and it was ordered therein that after the filing of proper vouchers the receiver should stand discharged. The court made no order at that time respecting the interest of Francis Hemm in the partnership assets and has made no such order since. After an unsuccessful motion for a new trial, Hemm, in the case of Hemm v. Juede, on July 19, 1909, duly took, and was duly allowed, an appeal to the St. Louis Court of Appeals from the action of the court in granting on July 9, 1909, the petition of the trustee in bankruptcy for an order to turn over Juede's half of the partnership assets, and said appeal is now pending in this court. On February 17, 1910, relator obtained judgment in the damage suit against Francis Hemm and Richard F. Juede, as partners, for $5,500 and costs, from which judgment Juede has duly prosecuted his appeal to the St. Louis Court of Appeals, and it is now pending there, but Juede has given no appeal bond. On April 26, 1910, after the term in which the petition of the trustee in bankruptcy was granted, and Hemm's appeal therefrom had been allowed, relator filed an intervening petition in the suit of Hemm v. Juede, stating facts substantially as above set forth, and alleging that relator had had execution issued on his judgment, but could find no property of Hemm or Juede on which to levy, and that the only property which either of them had was the partnership assets in the hands of the receiver, and that unless the court...