State v. Seehorn

• Citation: 208 S.W.2d 789
• Decision Date: 09 February 1947
• Docket Number: No. 20932.,20932.
• Parties: STATE ex rel. TEMPLETON v. SEEHORN, Judge.
• Court: Missouri Court of Appeals

208 S.W.2d 789

STATE ex rel. TEMPLETON v. SEEHORN, Judge.

No. 20932.

Kansas City Court of Appeals. Missouri.

February 9, 1947.

"Not to be published in State Reports."

Original proceeding in prohibition by the State of Missouri, on the relation of Marjorie S. Templeton, against Honorable Thomas J. Seehorn, Judge of the Circuit Court, Division No. 3, Jackson County, to prohibit respondent from modifying a certain judgment and to rescind an order of modification, wherein a preliminary writ was issued. On relator's motion for judgment on the pleadings and to make the preliminary writ absolute.

Motion granted.

Theo. C. Anderson, of Kansas City, for Relator.

Thomas A. Costolow, of Kansas City, for respondent.

DEW, Judge.

This is an original proceeding in prohibition against respondent, Judge of the Circuit Court of Jackson County. Our preliminary writ was issued, and relator seeks to make the same permanent.

The petition alleges that relator, on September 20, 1945, filed in the Circuit Court of Jackson County, Missouri, an action against the Remington Arms Company, Inc., a corporation, defendant therein, for certain benefits under a Wage Plan sponsored by the defendant, which cause was duly assigned for trial to respondent's division of said court where, on October 23, 1946, on trial before a jury, a verdict and judgment were rendered in relator's favor in the sum of $307.04; that a motion for new trial was duly filed by defendant and thereafter overruled by respondent on November 30, 1946; that no proceedings were thereafter had until January 3, 1947, when defendant caused to be filed and heard a motion for modification of said judgment, directing satisfaction there of and the payment to the United States Treasury out of the proceeds thereof, a certain amount for Federal Withholding Income Tax; that on January 14, 1947 respondent sustained said motion; that such order was made after the motion for new trial had been overruled, and after the lapse of 30 days from the date of the entry of the judgment during which respondent could, on his own motion, have modified said verdict and judgment, and after the judgment had become final; that respondent, notwithstanding relator's objection, refused to dismiss said application, but did so proceed to make the order wherein he directed that the defendant pay the sum of $307.04 to the clerk of said court, of which $254.84 was ordered to be paid by the clerk to relator and $52.20 to the Treasury of the United States as Withholding Tax, and that upon such payment to said clerk, the judgment shall be satisfied; that such order so made by the respondent will be carried into effect unless prohibited by this court; that relator has no adequate remedy at law.

The petition further alleges that upon the completion of said act of the respondent, the judgment will be satisfied of record so as to prevent and hinder further action and prosecution of the relator's rights; that the funds will be so dissipated as to be beyond the reach of the courts of Missouri, and respondent should be prohibited from making any further orders in said cause to modify said judgment or any part thereof except to rescind the order complained of and to dismiss the application therefor, and from making any orders pertaining to the payment of the judgment other than to the plaintiff (relator), with interest and costs, or otherwise than as provided by statute.

The prayer is that this court issue its writ of prohibition to prevent respondent from making any further orders at defendant's request to modify said judgment other than to rescind the order complained of, and for dismissal of the application therefor, and from making any orders pertaining to the payment of said judgment other than to the plaintiff (relator) and then only in the amount thereof, with costs and interest, or from making any order satisfying said judgment or permitting or instructing satisfaction other than as provided by statute.

Copy of the application for the order for modification was attached as an exhibit to the petition for prohibition and is, in effect, as described in said petition. It is signed by the Remington Arms Company, Inc., and by the United States Attorney. Copy of the order thereon, dated January 14, 1947, was also attached as an exhibit and is as follows:

"Now on this day there comes in for final hearing and disposition defendant's application for order directing satisfaction of judgment upon payment by defendant of the amount of the judgment less the withholding of income tax under Internal Revenue Laws of the United States, and both plaintiff and defendant being present in Court by their respective attorneys of record; the Court finds that the judgment in this case for the sum of $307.04 is for wages and compensation subject to a deduction of $52.20 withhilding tax under the laws of United States, which is required by said laws to be withheld and paid to the United States.

"It is therefore by the Court ordered that the defendant is and it is hereby directed to deposit with the Clerk of this Court said sum of $307.04, the amount of said judgment and the Clerk is hereby ordered and directed to pay to the plaintiff out of said money the sum of $254.84 to the Treasurer of the United States the sum of $52.20 withholding tax.

"It is further by the Court ordered and directed that when the aforesaid payments have been made and the defendant has paid the cost of this action then the judgment in this case shall be and the same is fully satisfied in all respects.

"Dated at Kansas City, Missouri, this 14th day of January, 1947.

                  "(Entry Furnished)
                  "Vol. 328 page 319."
                

By his return respondent admits the judgment and verdict in the cause between relator and the Remington Arms Company, Inc., the date thereof, as pleaded, the filing of the motion for modification, and order made thereon, but alleges that the motion was filed December 26, 1946, was argued January 3, 1947, and the order made thereon January 14, 1947; that the relator's allegations that the judgment had become final so as to bar the action taken by respondent was a conclusion of law; admits, that defendant has indicated no intention of not complying with said order of the respondent; generally denies the other allegations of the petition, and alleges that he acted with jurisdiction in the premises; that the order is self-enforcing on its face and complete, and cannot be reached by the remedy of prohibition under State ex rel. v. Mills, 231 Mo. 493, 503, 133 S.W. 22, and State ex rel. Kansas City v. Burney, 324 Mo. 363, 23 S.W.2d 117; avers that he has a right to determine the applicability of the section of the present code abolishing terms of court; that there is pending before respondent a motion filed by relator to set aside his order in question; that the petition herein does not state facts sufficient on which this court can make permanent its preliminary writ.

Thus it will be noted that the essential facts are uncontroverted. We deem the allegations in the pleadings sufficient to state that no part of the order complained of has been executed. Relator has filed motion for judgment on the pleadings.

In the case of State ex rel. v. Mills, 231 Mo. 493, 503, 133 S.W. 22, cited in respondent's return, the Supreme Court denied prohibition in an insanity proceeding sought on the ground of lack of jurisdiction where that question had been adjudicated by the trial court on disputed and contested facts, and two subsequent appeals thereon had been dismissed, and held further that the function of prohibition is to stop a court from acting and not to undo what has been done by the court; that such remedy will not apply where there is a remedy by appeal or motion to quash execution, but that if no other remedy is available, prohibition will lie to restrain a void decree or judgment.

In State ex rel. Kansas City, et al. v. Burney, 324 Mo. 363, 23 S.W.2d 117, also cited in the return, the respondent, a circuit judge, entered a degree in certain proceedings to review the action of the Board of Zoning Appeals of Kansas City, which Board had refused a permit for certain proposed improvements on real estate. The decree entered by the respondent therein reversed the Board's ruling and further provided that if the Board failed to issue the permit ordered, that the decree should operate fully as authority to construct the improvements. The Supreme Court, in a proceeding to prohibit the respondent judge from executing and enforcing said decree, held that the decree by its very terms was complete and self-executing, and that prohibition was not the proper remedy in such circumstances. It also held that the relator had a remedy by special appeal.

It is evident that the two cases cited in the return and discussed above are distinguishable from the instant case.

On the date that the respondent in the case at bar ordered the judgment modified, the motion for new trial...