State v. Thomas

• Citation: 155 S.W. 401,249 Mo. 103
• Parties: STATE ex rel. FISCHER et al. v. THOMAS, Judge.
• Decision Date: 28 March 1913
• Court: Missouri Supreme Court

155 S.W. 401

249 Mo. 103

STATE ex rel. FISCHER et al. v. THOMAS, Judge.

Supreme Court of Missouri.

March 28, 1913.

1. PROHIBITION (§ 13)—OBJECTIONS TO RELIEF—MOOT QUESTIONS.

The Supreme Court will not determine speculative or moot questions, and hence will dismiss an application for prohibition, where the court proceeded against has itself in effect done what relator seeks by entering an order dismissing the objectionable proceedings.

2. RECEIVERS (§ 199)—EXPENSES OF RECEIVERSHIP.

When a receivership suit is disposed of by judgment against the moving party, the expenses and compensation are not always allowed out of the assets of the successful party.

In Banc. Prohibition proceedings by the State, on the relation of Frederick E. Fischer and others, against William O. Thomas, Judge of the Circuit Court of Jackson County, Division No. 4. Proceeding dismissed.

Brownrigg & Mason, of St. Louis, for relators. Robinson, Goodrich & Robinson and Willard P. Hall, all of Kansas City, for respondent.

LAMM, C. J.

The Great Western Life Insurance Company was a domestic corporation in the line of business imported by its title. The International Life Insurance Company was the like. The two took steps heading to a consolidation. To that end a petition was presented under R. S. 1909, § 6936, as amended in 1911 (L. 1911, p. 264), to the honorable Frank Blake, superintendent of the insurance department of the state, accompanied by an exhibit of the agreements and plans for consolidation with the reasons therefor. Said superintendent, as authorized by the statutes referred to, had called to his assistance the insurance commissioners of two other states to "form a commission" to hear and determine whether the consolidation should go on the terms proposed, or on others to be substituted, or at all. Due notice had been given and a partial hearing had by the commission at a named place in St. Louis on a day set in the notice, to wit, November 11, 1912. Objections developing, and the matter being wholly in fieri at the close of the St. Louis hearing, the commission adjourned to meet in Kansas City on November 25th to complete the hearing and make findings. Four days before it met pursuant to that adjournment, a Mr. Green and three other stockholders of the Great Western (holding four shares of stock in the one thousand outstanding) brought a suit against the two companies, a Mr. Fischer and one Stevenson in the Jackson circuit court charging fraud and corruption in the scheme for consolidation, and injury to stockholders, policy holders and creditors, with a maladministration of Great Western corporate affairs, and praying for an injunction and a receiver. A receiver (a trust company) was appointed by respondent without notice and ordered to take possession of the properties, offices, books, etc., of the Great Western on giving bond, and defendants were ordered notified to appear and show cause why the receivership should not be made permanent on a hearing, the date to be fixed upon application. Giving bond instanter, the receiver took possession of the offices, assets, and books of the Great Western as ordered. Two days later said insurance companies and Fischer filed their suggestions here for a writ of prohibition against respondent, the gist of them being lack of jurisdiction to entertain the bill for an injunction and a receivership, while the question of consolidation was before the commission in usual course of orderly administrative detail under said statutes relating to consolidation of insurance companies.

We passed a preliminary rule citing respondent to show cause. As a part of that rule the status quo ante bellum (to borrow a warlike term) was re-established and the books, offices, and properties of the Great Western were ordered restored to that company until our further order. Our rule being served and those things done, thereafter plaintiffs in the receivership suit, on November 27th, dismissed that suit by entry reading: "Now on this day come the plaintiffs in open court, and upon application of plaintiffs this cause is by the court dismissed without prejudice. Wherefore it is ordered and adjudged by the court that this cause be and the same is hereby dismissed, that said defendants and each of them go hence discharged without day, and have and recover of and from the said plaintiffs all costs herein, and that execution issue therefor. And it is further ordered and adjudged that this court retain jurisdiction of the receivership with power to settle the receiver's account, to allow compensation to the...