The State ex rel. Big Bend Quarry Company v. Wurdeman

• Decision Date: 03 July 1925
• Docket Number: 26148
• Parties: THE STATE ex rel. BIG BEND QUARRY COMPANY v. GUSTAVUS A. WURDEMAN, Judge of Circuit Court
• Court: Missouri Supreme Court

274 S.W. 380

309 Mo. 341

THE STATE ex rel. BIG BEND QUARRY COMPANY v. GUSTAVUS A. WURDEMAN, Judge of Circuit Court

No. 26148

Supreme Court of Missouri

July 3, 1925

Preliminary rule discharged.

Leahy Saunders & Walther for relator.

(1) By Sec. 738, R. S. 1919, it is provided that the prosecuting attorney "shall prosecute or defend, as the case may require, all civil suits in which the county is interested represent generally the county in all matters of law," etc. Prosecuting attorneys are required to commence all civil actions in their respective counties in which the State may be concerned. State ex rel. v. Scale Co., 182 Mo.App. 658. (a) The right of a plaintiff to dismiss his suit or take a nonsuit before final submission is guaranteed by statute. Sec. 1410, 1409, R. S. 1919; Brandenberger v Puller, 266 Mo. 534. (b) Plaintiffs who act in an official capacity for the public in bringing a suit . . . may discontinue such suit during the continuance of term of office. 18 C. J. p. 1152, sec. 11; Mears v. Boston, 5 Gray (Mass.) 371. (c) The prosecuting attorney has the power to dismiss any suit brought by him in behalf of the State as plaintiff. Ex parte Claunch, 71 Mo. 233; State v. Shain, 248 S.W. 593; Davis v. Hall, 90 Mo. 659. (d) In all proceedings which the prosecuting attorney is authorized to bring in his official capacity he is "clothed with such discretion as to authorize him to dismiss the proceeding if, in his judgment, such course was for the best interests of the public." State v. Shain, 248 S.W. 593. (2) The dismissal of an action ousts the court of its jurisdiction of the action dismissed, and no further proceedings can be had or judgment rendered by the court. 18 C. J. p. 1171, sec. 63, p. 1170, sec. 59; Chouteau v. Rowse, 90 Mo. 191; Mason v. Railroad, 226 Mo. 212; Davis v. Hall, 90 Mo. 659; Sere v. McGovern, 65 Cal. 244. (3) The filing by the prosecuting attorney of the memorandum of dismissal and the entry of the filing of the memorandum by the clerk constituted a discontinuance or dismissal of the suit, and the suit not having been reinstated within the term of the court the dismissal is final. Unless a formal discontinuance, dismissal or nonsuit is required by statute it may be made in an informal manner. 18 C. J. p. 1166, sec. 50; First Natl. Bank v. Haire, 36 Iowa 443; Davis v. Minney, 159 P. 1112.

J. C. Kiskaddon for respondent.

(1) A plaintiff in vacation of court may dismiss his case, provided he first pays all costs; at other times he "shall be allowed" to dismiss. R. S. 1919, secs. 1409, 1410. "Vacation" means "the period of time between the end of one term and the beginning of the next term." 11 Cyc. 737, note 96; Lumber Co. v. Keener, 217 Mo. 522. "To allow" means "to grant, to give, to permit." 2 Cyc. 134. There are two parties to the transaction, viz: the plaintiff and the court. The plaintiff's right to dismiss is not absolute. 1 Tidd's Prac. (3 Am. Ed.) pp. 679, 680; Boot Co. v. Deere, 41 Kan. 150; Oberlander v. Co., 39 Kan. 462; Allen v. Dodson, 39 Kan. 220; Wyman v. Howard, 9 Okla. 35; Annot v. Patterson, 10 N.Y. 500. And a paper filed by plaintiff's attorney dismissing the case does not dismiss it. Pringle v. Wallace, 85 Hun. (N. Y.) 279; Rachett v. Gee, 91 Cal. 355; Barnes v. Barnes, 95 Cal. 171; Jenny v. Glenn, 12 Vt. 480. It is within the wise discretion of the court to refuse to make the order. Brandenburger v. Puller, 266 Mo. 541; Keithly v. May, 29 Mo. 220; Browning v. Cressman, 30 Mo. 353; Allen v. Collier, 32 Mo. 507; Davis v. Carter, 67 Mo. 544; Wilder v. Boynton, 63 Barb. (N. Y.) 547; Schenkos v. Fancher, 14 How. Pr. (N. Y.) 95; Carleton v. Darcy, 75 N.Y. 375; Payton v. Sherburne, 15 R. I. 213; Lando v. Railroad, 81 Minn. 279; Bank v. McAllister, 6 Watt. & S. (Pa.) 147; Adger v. Pringle, 11 S.C. 547; State ex rel. v. Ludwig, 106 Wis. 226.

White, J. All concur, except Graves, C. J., who dissents; Ragland, J., concurs in Paragraph I and in the result only.

OPINION

WHITE

The relator filed a petition in this court seeking to prohibit respondent, Judge of the Circuit Court of St. Louis County, from proceeding with an action wherein the State of Missouri was plaintiff, and the Big Bend Quarry Company, relator, was defendant. By stipulation filed in this court February 18, 1925, the service of preliminary rule in prohibition was waived, and respondent filed his return. Thereupon, March 24, 1925, the relator filed a motion for judgment on the pleadings on the ground that the return of respondent did not set up facts sufficient to show why an absolute rule of prohibition should not be entered against him.

The petition sets out that August 24, 1924, there was filed in the Circuit Court of St. Louis County, by Adam Henry Jones, prosecuting attorney of said county, a petition in the case of State of Missouri v. Big Bend Quarry Company, relator herein, wherein he charged relator with operating its quarry in the outskirts of the city of Maplewood in such manner as to constitute a public nuisance; that the defendant, relator here, after unsuccessfully demurring to the petition of the plaintiff, filed an answer.

The petition and answer in that case are set out in full. The answer, after a general denial, pleaded laches and a statute of limitations, and alleged further that the suit was not brought by the prosecuting attorney in good faith, but in truth was brought in his name for the benefit of certain private individuals who had entered a conspiracy to annoy and harass defendant in the conduct of its lawful business of quarrying limestone; that the persons engaged in the conspiracy employed as counsel a law firm, Ralph & Baxter, to institute an injunction suit to restrain the operation of the quarry for the reason that it constituted a public nuisance; that the facts alleged in the petition did not amount to a public nuisance.

The petition for a writ of prohibition then alleges that on December 31, 1924, at the September term of the Circuit Court of St. Louis County, Adam Henry Jones, prosecuting attorney, filed in said cause a writing, as follows:

"State of Missouri

v.

"Big Bend Quarry Company, a Corp.

No. 44,813

Dec. 31, 1924.

"Cause dismissed by State.

"Adam Henry Jones."

That said memorandum was filed with the clerk during the vacation of said court, and marked by said clerk, "Filed," and an entry of the filing of the same made upon the minute book of the court; that no motion to set aside the dismissal was filed, nor order setting it aside was made, during the September term, 1924, and said dismissal was therefore final.

The petition further alleges that after the dismissal and after the expiration of the term of office of Adam Henry Jones, as prosecuting attorney, Messrs. Ralph & Baxter, pretending to act on behalf of Frederick E. Mueller, who succeeded Adam Henry Jones as Prosecuting Attorney of St. Louis County, filed a motion to strike out parts of the answer of defendant in the injunction suit; that the respondent is threatening to hear and determine said motion and to proceed with the trial of the said suit; that the case having been dismissed, the judge of said court, respondent, is without jurisdiction to proceed with said cause; the petition therefore prays that he be prohibited from so proceeding.

The respondent's return admits substantially all the allegations of relator, and further says that the term of office of Adam Henry Jones as prosecuting attorney of said county ended December 31, 1924, and the term of Frederick E. Mueller, as prosecuting attorney of said county, began January 1, 1925; that Ralph & Baxter, practising attorneys at law, argued for the State the demurrer and motions, addressed to the pleadings, and that neither Adam Henry Jones nor any of the assistant prosecuting attorneys of said county appeared in said cause on the hearing of the demurrer or motions, but the State was solely represented by said Ralph & Baxter.

The return further says that December 31, 1924, the said circuit court was in session, and that during said noon recess, while respondent was not on the bench, Adam Henry Jones presented to the clerk of said court the memorandum of the dismissal set out in plaintiff's petition and requested said clerk to file the same; that said Adam Henry Jones did not ask leave of the court to file said paper, nor request said court while in session to make an order allowing him to dismiss said cause; nor did he pay nor tender payment of all costs accrued in said cause; that said clerk, without leave or order of the court received said paper, indorsed it as filed, and noted the fact of filing upon the rough minutes kept by the clerk; that afterwards, December 31, 1924, said court was adjourned to January 1, 1925, also a day of the said September term, 1924, of said court.

The return of respondent further says that on the same day December 31, 1924, Ralph & Baxter objected to any order dismissing said suit, and stated as reasons for their objection that James McKelvey, representing over three hundred citizens, taxpayers and resident householders of the city of Maplewood and said county, sought the advice of Ralph & Baxter, and that Ralph & Baxter had advised them that the defendant, relator here, was committing a public nuisance, that the remedy would be to have the prosecuting attorney institute a suit in the name of the State to abate the nuisance, and that therefore said McKelvey retained Ralph & Baxter to do whatever was necessary to that end, and that Ralph & Baxter prepared the petition in the injunction suit and presented it to Adam Henry Jones with an oral statement of the facts as they had learned them from their client, and after filing the said petition neither said Jones nor any assistant prosecuting...