Stimson v. Cathedral Mining and Smelting Company

• Decision Date: 02 March 1915
• Citation: 174 S.W. 420,264 Mo. 190
• Parties: E. T. STIMSON v. CATHEDRAL MINING AND SMELTING COMPANY et al., Plaintiffs in Error
• Court: Missouri Supreme Court

174 S.W. 420

264 Mo. 190

E. T. STIMSON v. CATHEDRAL MINING AND SMELTING COMPANY et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

March 2, 1915

Error to Jasper Circuit Court. -- Hon. D. E. Blair, Judge.

Reversed and remanded (with directions).

Boyle & Priest, T. M. Pierce and Robert E. Maloney for plaintiffs in error.

(1) The order of the court striking the answer of the defendants from the files because of failure to produce certain books and papers for inspection was void and not authorized by law since it does not appear that the defendants had refused at any time to furnish books and papers "designated by the plaintiff," and because section 1948, R. S. 1909, upon the authority of which such order was made, does not authorize a pleading to be stricken from the files, and furthermore because said statute is unconstitutional and inoperative, since it violates section 30 of article 2 of the Constitution of Missouri, which forbids any person to be deprived of property without due process of law, and also violates section 1 of article 14 of the Amendments to the Constitution of the United States, which guarantees that property shall not be taken without due process of law. Hovey v. Elliott, 167 U.S. 409, 42 L.Ed. 215. (2) No time should be granted for obtaining nunc pro tunc amendment. Nisdenberger v. Campbell, 11 Mo. 362; Rohrer v Oder, 124 Mo. 33; Arendondo v. Arendondo, 133 U.S. 377.

McReynolds & Halliburton for defendant in error.

(1) The action of the court in striking out the answer of the defendants Cathedral Mining Company, G. W. Hoadley, Edward K Hill, and Harry W. Blair is authorized by the statute. Sec. 1947, R. S. 1909. (2) Conceding for the purpose of argument that the order made by the circuit court is insufficient and violates some right of the plaintiffs in error, there is sufficient in the record and files of the court to authorize an entry nunc pro tunc, that is to say, the motion filed by the defendant in error specifically sets forth the books, papers and documents required by the plaintiff in the case below, and the judge's docket shows that the motion filed was sustained, and time set for compliance with the order of the court. Sections 1851 and 1865, R. S. 1909, are sufficient to authorize such nunc pro tunc entries, and it was expressly decided in Harlan v. Moore, 132 Mo. 491, that the court had power to amend pending appeal. This court has heretofore made orders granting leave to a party to apply nisi for a nunc pro tunc order. Adams v. Gossom, 228 Mo. 571. In fact, has made an order on the trial court if it could from competent evidence make an amendment of the record so that the case could be heard on its merits in this court. Ross v. Railroad, 141 Mo. 393; Gamble v. Daugherty, 71 Mo. 601; Crawford v. Railroad, 171 Mo. 75.

RAILEY, C. Brown, C., concurs.

OPINION

RAILEY, C.

Plaintiff sued defendants in division two of the Jasper Circuit Court, on January 11, 1910. The purpose of said action was to obtain a judgment against the Cathedral Mining and Smelting Company, on bonds amounting to $ 10,000, with interest on certain bonds executed by said mining company and secured by a deed of trust on certain property, and to foreclose the equity of redemption of said company, Edward K. Hill, Howard Gray, Empire Trust Company, and Harry W. Blair, and to order said property sold. The petition alleges that plaintiff is informed that Edward K. Hill, George W. Hoadley, A. H. Hoadley, E. J. Bennett, G. S. Graham, F. F. Carpenter, P. Reimer, A. E. Oldham, V. Dart, and P. McKenna are claiming to be holders and owners of part of said series of bonds.

It is charged in the petition that if any of said parties hold any of said bonds, they obtained possession of same without paying any consideration therefor; that no interest had ever been paid on any of said bonds; that said Cathedral Mining and Smelting Company was insolvent at time of trial, and had been insolvent for more than two years prior thereto; that said smelting company for two years or more prior to the date of trial had not attempted to do any business, had not elected any officers or kept any office open, and had abandoned its property and business. The prayer asks for general relief.

All of the defendants appeared. The mining company and defendant Blair first filed a demurrer to said petition and afterwards withdrew the same. On October 1, 1910, all of the defendants filed a joint answer, which was signed by Perkins and Blair, and H. W. Currey, attorney for defendants. Said answer denied the alleged equities of plaintiff, and averred that the bonds were acquired by the holders in good faith and for a valuable consideration. It is alleged in the answer that the mortgage referred to in petition could not be foreclosed, because the holders of three-fourths of the amount of the outstanding unpaid bonds and coupons had not requested the trustees to foreclose, as provided in said deed of trust. The answer further alleged that plaintiff had made no demand upon the trustees for a foreclosure, and that three-fourths of the holders of said bonds in amount had not agreed to the foreclosure of said mortgage; that plaintiff could not maintain his suit until such conditions of the deed of trust had been met.

On November 22, 1910, plaintiff filed a petition for an order requiring defendants to produce certain papers to be inspected and copied, as follows:

"(1) The articles of association of the Cathedral Mining Compay. (2) The books of the Cathedral Mining Company showing the proceedings of the stockholders of said company and of the directors of said company. (3) The stock book of the Cathedral Mining Company, showing the issue of stock, to whom issued and who the present stockholders are. (4) The record showing the sale of bonds of said company, to whom sold and payments received therefor. (5) The books and records of the Chapel Mining Company, showing the minutes of the proceedings of the board of directors and of the stockholders of said Chapel Mining Company. (6) The stock book of said Chapel Mining Company, showing who were the stockholders of said Chapel Mining Company. (7) The articles of association of the Mission Mining Company, together with the records showing who were the stockholders in the Mission Mining Company, and showing the proceedings of the board of directors and of the stockholders of said Mission Mining Company. (8) The articles of association of the Vestry Mining Company and the records showing who were the stockholders of the Vestry Mining Company. (9) The records showing the proceedings of the board of directors and the stockholders of the Vestry Mining Company.

"Plaintiff shows to the court that the Cathedral Mining Company, the Mission Mining Company and the Vestry Mining Company were corporations organized outside of this State, and that their offices and their records were all kept outside of this State, and that the said George W. Hoadley, Edward K. Hill, and possibly some of the other defendants herein, were stockholders and managers of said companies.

"Plaintiff says that to prepare his case properly for trial and that justice may be done between the parties herein, it is absolutely necessary that the plaintiff, prior to announcing ready for trial, should have a chance to inspect said records, make copies of such as may be necessary, and that they should be where they can be used as evidence in the trial of this cause."

This petition was verified by one of plaintiff's counsel.

On November 26, 1910, the following record entry appears, in respect to said petition:

"Now comes on for hearing plaintiff's petition requiring defendants to produce certain books and papers for plaintiff's inspection, heretofore filed herein; said petition is taken up, and being seen, heard and fully understood by the court, the same is sustained.

"It is therefore ordered by the court that said defendants be, and they are hereby required to produce, for plaintiff's inspection, on or before the second day of January, 1911, such books and papers bearing upon the issues in this cause as shall be designated by the plaintiff."

On February 20, 1911, plaintiff filed a motion to strike out the answer of said defendants, as follows:

"Now comes the plaintiff and moves the court to strike out the answer of the Cathedral Mining Company, G. W. Hoadley, Edward K. Hill and Harry W. Blair, defendants herein, for the following reasons, to-wit: Because this court at its last term, to-wit, the November term, 1910, made an order of record in this cause, after due notice to said defendants, requiring them to produce for the inspection of the plaintiff in preparing his case for trial, certain books and papers in the possession and under the control of said defendants, on or before the 2nd day of January, 1911, and the defendants have wholly neglected, failed and refused to produce said books and papers, or any part thereof, by reason of which their answer should be stricken from the files in this cause."

On February 25, 1911, the following record entry appears:

"Now at this day, the motion heretofore filed by the plaintiff to strike out the answer of defendants, Cathedral Mining & Smelting Company, G. W. Hoadley, Edward K. Hill, and Harry W Blair, comes on for hearing. Plaintiff appears by his attorneys, McReynolds & Halliburton, and the defendants appear not in person, and their attorney of record, although duly served with a copy of said motion, appears not; and it appearing to the court that said motion was filed in this court on the first day of this term and was regularly set for hearing today, and that said defendants' attorney of record had notice of such setting and was in court in person this day, and his attention...