State v. Wilcox
| Decision Date | 07 November 1949 |
| Docket Number | No. 21274.,21274. |
| Citation | 224 S.W.2d 392 |
| Parties | STATE ex rel. SIMONS v. WILCOX, Judge. |
| Court | Missouri Court of Appeals |
King & Utz, St. Joseph, for relator.
Maurice Pope, St. Joseph, for respondent.
This is an original proceeding in prohibition filed by John Simons, as relator, against Honorable Sam Wilcox, Judge of Division No. 1 of the Circuit Court of Buchanan County, Missouri. Our preliminary writ issued, to which respondent made return. The relator moved for judgment upon the pleadings. We, therefore, look to the pleadings for the facts. They are: On November 17, 1947, relator filed a petition in the Circuit Court of Buchanan County, Missouri, against Fred J. Mettlemeyer, in which he alleged that defendant had listed certain real estate with relator, a real estate broker, for sale; that relator procured a buyer ready, able and willing to purchase the property at the price defendant had listed it with relator and that said Mettlemeyer had refused to sell the property on the terms proposed and, as a result of defendant's refusal to sell, relator had earned his right to a commission and asked judgment against Mettlemeyer in the sum of $1875.
That cause was numbered 72,107 by the Circuit Clerk and fell to Division No. 1 of said court, presided over by respondent herein. On October 19, 1948, said cause went to trial before respondent and a jury, resulting in a verdict and judgment in favor of relator and against defendant, Mettlemeyer, for the amount prayed for $1875. On October 27, 1948, defendant filed his motion for new trial, which was taken up by respondent on November 19, 1948, and overruled. On November 23, 1948, defendant filed notice of appeal to this court. Thereafter, on January 18, 1948, said defendant filed in the Circuit Court of Buchanan County, a withdrawal of his appeal, no transcript having been filed in this court. On the same day, January 18, 1949, relator and defendant, Mettlemeyer, entered into a stipulation of settlement which was on January 18, 1949, filed with the Circuit Clerk. This stipulation recited that relator had recovered a judgment against Mettlemeyer for $1875; that he had taken an appeal from said judgment to this court; that defendant would withdraw his appeal in said case No. 72,107 in accordance with Rule 1.17 of the Supreme Court and pay and pay the sum of $1500 and costs taxed in said case, and that relator would accept said sum of $1500 and the payment of said costs in full and complete settlement and compromise of said case No. 72,107, and would enter upon the margin of the record of the judgment in said case full satisfaction thereof.
On the same day that this stipulation for settlement was filed with the Circuit Clerk and the sum of $1500 paid to him, and within an hour thereafter, E. N. Peterson, a stranger to the record in said No. 72,107, filed his motion styled "Motion to Intervene, for Declaratory Judgment and for Temporary Restraining Order." A copy of this motion was served upon relator. In it Peterson recited that relator had recovered judgment against defendant, Mettlemeyer for the sum of $1875; that by virtue of the stipulation between relator and Mettlemeyer, an appeal to this court had been dismissed, so that Division No. 1 of the Circuit Court of Buchanan County, Missouri, then had jurisdiction therein; that movant, Peterson, had an equity of an undivided one-half interest in the judgment heretofore rendered in favor of relator against Mettlemeyer; that while said case No. 72,107 was originally filed in the name of relator, as plaintiff, actually, movant should be a party plaintiff therein because movant, in equity, is entitled to be adjudged the owner of an undivided one-half interest in said judgment by virtue of a contract heretofore entered into between relator and movant, which contract was to the effect that movant and relator "were to share equally in any real estate commission thereafter to be paid or become due from Fred J. Mettlemeyer to John Simons; that the consideration of this contract was the performance of services by movant, which services he did perform."
Movant, Peterson, further alleged that satisfaction of said judgment, under the stipulation between relator and defendant, Mettlemeyer, was to be made either between said Simons and Mettlemeyer, or through payment of funds through the office of the Circuit Clerk, and that movant was in danger that said funds would be distributed and dissipated unless an order was made by respondent enjoining relator, defendant, Mettlemeyer, and the Circuit Clerk from distributing said funds; that movant had no adequate remedy at law. Movant's prayer was (1) that respondent make an order permitting movant to intervene as a party plaintiff: (2) that respondent hear evidence and enter a declaratory judgment fixing the rights of movant in and to the proceeds of the judgment entered, and decree that Simons and movant are each entitled to an undivided one-half interest in said judgment, and (3) that the court make an order restraining Simons, Mettlemeyer and the Circuit Clerk from entering satisfaction of the original judgment, or from distributing any proceeds due under that judgment.
On January 19, 1949, respondent issued a temporary restraining order directing the Clerk not to distribute any of the money in his hands in said case No. 72,107 until further order of the court.
On January 25, 1949, Whitney W. Potter, who was, at that time, the attorney of record for relator, filed his motion to establish an attorney's lien on the proceeds of the judgment in the hands of the Circuit Clerk, which motion was by respondent sustained in the sum of $500, and the Clerk directed to retain the balance until further order of the court.
On said January 25, 1949, relator filed his motion to strike the motion of Peterson to intervene. On February 14, 1949, the motion of Peterson to intervene and the motion of relator to strike were presented to respondent who, on the same day, overruled relator's motion to strike and sustained the motion of Peterson to intervene.
Relator alleges that, unless prohibited by this court, respondent will, in excess of his jurisdiction, and without jurisdiction, proceed with the motion of Peterson to intervene and for declaratory judgment, and will proceed to compel relator to answer and plead to said motion and, if relator fails to plead, will proceed to enter judgment by default against relator, or, if relator does plead and answer said motion of Peterson, that respondent, in excess of his jurisdiction, and without jurisdiction, will force relator to submit to a trial of said cause before respondent, and will, unless prohibited by this court, render judgment between the parties to said motion of Peterson and continue to hold and impound the money rightfully belonging to relator, and that...
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