The State ex rel. Kansas City Missouri Navigation Co. v. Dew

• Decision Date: 30 December 1925
• Docket Number: 26504
• Citation: 279 S.W. 65,312 Mo. 300
• Parties: THE STATE ex rel. KANSAS CITY MISSOURI NAVIGATION COMPANY et al. v. SAMUEL A. DEW, Judge of Circuit Court, et al
• Court: Missouri Supreme Court

279 S.W. 65

312 Mo. 300

THE STATE ex rel. KANSAS CITY MISSOURI NAVIGATION COMPANY et al. v. SAMUEL A. DEW, Judge of Circuit Court, et al

No. 26504

Supreme Court of Missouri

December 30, 1925

Preliminary rule made absolute.

Miller, Winger & Reeder and Reed, Boyle, Holmes & Taylor for relators; James A. Reed, Massey Holmes Maurice H. Winger, P. E. Reeder and Leland Hazard of counsel.

(1) The circuit court had no jurisdiction over the subject-matter of this action. Bick v. Vaughn, 140 Mo.App. 595; Knight v. Ry. Co., 120 Mo.App. 311; Rush v Brown, 101 Mo. 587; Howard v. Wilson, 195 Mo.App. 532; Aiple-Hemmelmann Real Estate Co. v. Louis Spellbrink, 211 Mo. 671; Bick v. Dickson, 148 Mo.App. 703; Witherbee v. Bowles, 201 N.Y. 427; Ashton v. Penfield, 233 Mo. 391; Dorrah v. Pemiscot County Bank, 256 S.W. 560; Suggett v. Pemiscot County Bank, 256 S.W. 565; Hearst v. Putnam Mining Co., 28 Utah 184, 66 L. R. A. 784. (2) There being no jurisdiction in the circuit court of the action exhibited by the original bill in equity, no amendment thereof was possible to confer jurisdiction. 15 C. J. 854; State ex rel. v. McQuillin, 256 Mo. 693; Goodwin v. Barnett, 28 N. E. (Ind.) 115; Norton v. Hannibal & St. Joseph Railroad Co., 48 Mo. 387; Elfrank v. Seiler, 54 Mo. 134. (3) The action of the circuit court subsequent to the entire lack of jurisdiction being called to its attention was and is a usurpation of jurisdiction requiring this court's intervention by its writ of prohibition; and such lack of jurisdiction of the subject-matter could not be waived by, nor even conferred by express consent of, the defendants. Briggs v. Traders Company, 145 F. 254; Barcus v. Gates, 89 F. 783; Grymes v. Mill & Lumber Company, 111 Mo.App. 358; Scoville v. Glasner, 79 Mo. 449; State ex rel. v. Eby, 170 Mo. 497; Brown v. Woody, 64 Mo. 547; Abernathy v. Moore, 83 Mo. 65; United States v. Mayer, 235 U.S. 55, 59 L.Ed. 129.

E. C. Hamilton, A. R. McClanahan and Clarence A. Burney for respondents.

(1) The circuit court, against which the preliminary rule in prohibition has issued, is vested with jurisdiction to hear and determine the cause submitted in the original bill, and in the first amended bill. Secs. 10169, 10170, 10171, R. S. 1919; Slattery v. Transfer Co., 91 Mo. 217; Buford v. Packet Co., 3 Mo.App. 159; Hannerty v. Standard Theater Co., 109 Mo. 299; State ex rel. v. Reynolds, 275 Mo. 113; Bates v. Werries, 198 Mo.App. 209; Ward v. National Ice Cream Co., 246 S.W. 557; Van Oss v. Petroleum Co., 93 A. 76; Riley v. Callahan Mining Co., 155 P. 671; Cantwell v. Lead Co., 199 Mo. 1. (2) Even though a court of equity is without power to grant all the relief prayed for (including distribution of assets), yet the prayer does not determine the jurisdiction, and the court will look to the whole petition and grant any relief consistent with the facts pleaded and embraced within the general prayer for relief. Liese v. Meyer, 143 Mo. 547; McGlothin v. Moore, 44 Mo. 350; Luenk v. Burch, 90 Mo. 500; Holland v. Anderson, 38 Mo. 58; State ex rel. v. Dearing, 180 Mo. 53; Bick v. Dixon, 148 Mo.App. 703; Ashton v. Penfield, 233 Mo. 319; Cantwell v. Lead Co., 199 Mo. 1; State ex rel. v. Foster, 225 Mo. 171.

Ragland, J. All concur, except Otto, J., not sitting.

OPINION

RAGLAND

Original proceeding in prohibition. On January 14, 1925, Frank W. McMillan, as plaintiff, filed in the Circuit Court of Jackson County, at Independence, his bill in equity against Kansas City Missouri River Navigation Company, a corporation, and certain individuals designated as directors, as defendants. Thereafter, on March 11, 1925, the defendants filed a general demurrer to the bill. On March 21, 1925, while the demurrer was still pending, the court of its own motion transferred the cause to the Circuit Court of Jackson County at Kansas City. On March 24, 1925, and before the demurrer had been passed upon, plaintiff, by leave of court, filed what is termed his "first amended bill in equity." At this stage of the proceeding three other persons claiming to be the several owners in the aggregate of 450 shares of preferred stock of the corporation were permitted to intervene and become parties plaintiff and who thereupon adopted the pleadings on the part of the plaintiff. At about the same time 427 others claiming to be the owners of 588,900 shares of preferred stock were allowed to become parties defendant. Subsequently the defendants demurred to plaintiffs' amended bill, on the grounds: first, that the court had no jurisdiction of the subject of the action; second, that several causes of action had been improperly united; and, third, that said pleading did not state facts sufficient to constitute a cause of action. The joint and several demurrers of defendants were sustained, and the plaintiff given time to further plead. Thereafter, on May 20, 1925, plaintiffs filed a "second amended bill in equity." This pleading the defendants moved to strike from the files on the ground: "that the cause of action set up in said second amended petition or bill in equity is separate, distinct and different from the cause of action heretofore set up by plaintiffs in this action, and for the reason that said second amended petition constitutes a departure." The motion to strike was overruled by the court. Thereupon the defendants applied to this court for a writ to stay further proceedings, on the ground that the circuit court was without jurisdiction of the subject of the action, and our provisional rule in prohibition issued.

It is relators' contention that the original bill and the first amended bill each had for its objective the dissolution and winding up of the affairs of the Kansas City Missouri River Navigation Company, while respondents insist that the action as disclosed by said pleadings is for an accounting at the hands of the officers and directors of that corporation. For the purpose of determining the nature of the action the original bill may be excluded from consideration. This because it was abandoned by plaintiff McMillan, when he filed his first amended bill, and thereafter defendants without in any way limiting their appearance pleaded to the first amended bill. So that even if the latter pleading stated an entirely different cause of action from that set forth in the original, was in fact the institution of a new lawsuit, the defendants by voluntarily appearing thereto submitted themselves, so far as their persons were concerned, to the jurisdiction of the court. We agree with respondents' statement of the issue thus:

"At the threshold of this case we are met with the consideration of this one important question which is determinative of the right to the peremptory writ: 'Is the case stated in respondent McMillan's first amended bill one over which the general jurisdiction of the circuit court extends?' If this question can be answered in the affirmative, then all else is beside the case and the preliminary rule should be dissolved. If the answer is in the negative then of course the preliminary rule should be absolute."

The pleading in question is voluminous, but as so little space could be saved by an attempted analysis of it we prefer to let it speak for itself. Omitting small portions which are merely repetitions, it is as follows:

"1. Your petitioner, having first obtained leave of court, files this, his first amended bill in equity, and states that he is a stockholder in the Kansas City Missouri River Navigation Company, being a bona-fide owner and holder of seventeen hundred shares of the preferred stock of said corporation, and that as such stockholder this action is brought for and on behalf of himself and other stockholders similarly situated who may desire to participate as plaintiff in this action.

"Plaintiff further states to the court that said Kansas City Missouri River Navigation Company is a corporation duly organized and existing under the laws of the State of Missouri, having been organized in the year 1909 with a capital stock of two thousand shares of the par value of one dollar per share; that the original stockholders of said corporation, together with their holdings, at the date of said incorporation were as follows:

W. R. Nelson

154 shares

J. F. Richards

154 shares

W. S. Dickey

154 shares

L. M. Jones

154 shares

Leon Smith

154 shares

R. A. Long

154 shares

A. W. Mackie

154 shares

W. M. Volker

154 shares

Chas. Campbell

154 shares

J. F. Bird

154 shares

J. J. Heim

154 shares

Thos. H. Swope

154 shares

Joseph S. Loose

152 shares

"That all of said two thousand shares were common stock issued to the above parties, and that the thirteen parties above named were designated and chosen as directors for the first year; that the purpose for which said corporation was formed, as stated in the articles, was as follows:

"'The purposes for which this corporation is formed are to navigate, improve and cause to be improved, the Missouri River and the inland waterways of the United States; to develop the natural resources of the land and country bordering on and contiguous thereto, and to convey and transport persons and freight on land or water by any mode or conveyance whatever, and to do all things lawful and needful to carry out the purposes herein stated.'

"2. Your petitioner further represents to the court that said above-named corporation was organized under the provisions of the statutes of the State of Missouri for 1909, particularly under Article 7 of Chapter 33 of Private Corporations governing the formation of business and manufacturing corporations; that under and by virtue of the fourth paragraph of the original articles of incorporation it was provided that, in order that the control and management of the corporation might always be...