State v. Smith

• Decision Date: 28 February 1905
• Citation: 188 Mo. 167,86 S.W. 867
• Parties: STATE ex rel. MANNING et al. v. SMITH et al.
• Court: Missouri Supreme Court

86 S.W. 867

188 Mo. 167

STATE ex rel. MANNING et al. v. SMITH et al.

Supreme Court of Missouri.

February 28, 1905.

COURTS — APPEAL — INTERLOCUTORY ORDER— JURISDICTION—CERTIORARI—CONSTITUTIONAL LAW—STATUTES.

1. Under Rev. St. 1899, § 3644, providing that the plaintiff in a civil action may have a temporary injunction, that after answer filed a motion may be made to dissolve the injunction, and that on such motion the parties may introduce testimony, and that the court shall decide on the weight of the testimony, an order on a motion to dissolve is interlocutory, and the effect is not changed by section 806, providing that an appeal may be taken from any order dissolving an injunction, and that failure to appeal from any decision before final judgment shall be without prejudice to the right to have the action reviewed on appeal from the final judgment; nor is the character of such order affected by the fact that on the motion to dissolve testimony was heard on the merits of the whole case, and that the account of the receiver appointed by the court on its own motion as an adjunct of the temporary injunction was settled.

2. On appeal from an order dissolving a temporary injunction the jurisdiction of the Court of Appeals is wholly appellate, and it has no power to direct a final judgment.

3. Under Const. Am. 1884, § 8, giving the Supreme Court superintending control over the Courts of Appeals by certiorari where a Court of Appeals, in the exercise of its appellate jurisdiction, exceeds the bounds thereof and attempts to render a final judgment in a cause pending before it on appeal from an order dissolving a temporary injunction, the Supreme Court has power to interfere by certiorari.

In Banc.

Certiorari by the state, on the relation of James H. Manning and others, against J. L. Smith and others, judges of the Kansas City Court of Appeals, to quash so much of a judgment by the court as was in excess of its jurisdiction. Writ granted.

B. P. Finley and Scarritt, Griffith & Jones, for relators. Ward & Hadley, for respondents.

BRACE, C. J.

This is a proceeding by certiorari. On the 27th of November, 1901, the Metropolitan Land Company instituted a suit in equity in the circuit court of Jackson county at Kansas City against James H. Manning as defendant to enjoin him from trespassing upon land in said city known as the "Exposition Ball Park," of which said plaintiff claimed to be the owner, and for damages for trespass thereon; and on the same day, upon the petition therein, the court made the following order: "Ordered, that a restraining order be granted herein restraining the defendant, his servants and agents, from trespassing or entering upon the following described premises, being what is known as `Exposition Ball Park,' and more particularly described as follows [describing property], and from interfering in any way with plaintiff's enjoyment and use of said premises, until further order of this court; and it is further ordered that Porter B. Godard, of Kansas City, Missouri, receive twenty per cent. of all the proceeds realized from the sale of tickets of admission to the game of football to be played on said premises Thursday, November 28, 1901, and retain and hold the twenty per cent. until further order of this court, paying out of said twenty per cent. any expense said Godard may incur in putting said premises in order for said game and in policing the same, and plaintiff and defendant be enjoined from receiving said receipts; and it is further ordered that said Godard have charge and manage said premises; this case be continued to the 30th day of November, 1901." On the 9th of December, 1901, said defendant filed his answer to the petition, and on the 13th of December, 1901, filed his motion to dissolve the injunction. On December 14, 1901, the following proceedings were had in said cause: "Now plaintiff files reply to answer of defendant, and thereupon this cause being called for trial on the pleadings and motion to dissolve the injunction, the parties appearing in person and by attorneys, and after a portion of the evidence was heard, the further hearing thereof is continued until December 23, 1901, and the restraining order is continued in full force and effect until December 23, 1901." On December 23, 1901, Porter B. Godard filed his report as receiver, and on that day, "all the evidence having been introduced," the cause was submitted and taken under advisement by the court, and afterwards, on the 14th of April, 1902, the following proceedings and order were entered of record: "Now on this day this cause having been heretofore heard upon the motion to dissolve the temporary injunction heretofore granted herein, and the court having seen, heard, and examined the petition, answer, and reply made and filed in said cause by the counsel for the respective parties, and taken the same under advisement, and being now fully advised in the premises, finds the issues on said motion in favor of the defendant, and does order, adjudge, and decree that said motion be, and the same is hereby, sustained, and said temporary injunction be, and the same is hereby, dissolved. And it is further ordered, adjudged, and decreed by the court that Porter B. Godard, heretofore appointed by this court receiver in this cause subject to the order of this court, be, and he is hereby, allowed to have and retain of the funds now in his hands as such receiver the sum of one hundred and seventeen dollars ($117.00) as compensation as receiver, and that the report of said receiver heretofore filed herein, showing that as such receiver he expended the sum of one hundred and fifty and 5/100 ($150.05) dollars in the discharge of his duties as such receiver, be, and the same is hereby, approved in all things; and that said receiver be credited with said sum of $150.05 so expended, and with the further sum of $117 hereinbefore allowed to him as aforesaid; and that he pay over and deliver to James H. Manning, defendant above named, the sum of eleven hundred ($1,100) dollars, the same being the balance in his hands of the total sum of thirteen hundred and sixty-seven dollars and five cents ($1,367.05) received by him as twenty per cent. of the proceeds of said football game, after paying the costs and expenses incurred by him as such receiver; and that said Godard be fully and finally discharged as such receiver upon filing in this court a full receipt of James H. Manning for said sum of $1,100."

From this order the plaintiff appealed to the Kansas City Court of Appeals, in which court the appeal was heard in due course, and on the 5th of January, 1903, the following judgment was rendered and entered of record in said court: "Now at this day come again the parties aforesaid by their respective attorneys, and the court here being now sufficiently advised of and concerning the premises doth consider and adjudge that the judgment aforesaid in form aforesaid by the said circuit court of Jackson county rendered be reversed, annulled, and for naught held and esteemed, and that the said appellant be restored to all things which it has lost by reason of the said judgment. It is further considered and adjudged by the court that the said cause be remanded to the said circuit court of Jackson county, with directions that the trial court make all necessary orders in discharge of the receivership, and render judgment for the plaintiff, and that the said appellant recover from the said respondent the costs and charges herein expended, and have therefor execution." And in pursuance thereof said Court of Appeals issued its mandate to the circuit court, which was filed in the office of the clerk of said c...