The State ex rel. Klotz v. Ross

• Decision Date: 09 November 1893
• Parties: The State ex rel. Klotz v. Ross et al
• Court: Missouri Supreme Court

23 S.W. 196

118 Mo. 23

The State ex rel. Klotz v. Ross et al

Supreme Court of Missouri

November 9, 1893

Peremptory writ denied.

H. S Priest, Alex. G. Cochran and M. L. Clardy for relator.

(1) Mandamus is a proper remedy to test the right of relator to the possession of the property committed to his charge by the Stoddard court as its executive officer, or its hand; and more especially is this true under circumstances of a case where the contest is between two courts of co-ordinate jurisdiction involving priority of right and over which this court alone by the terms of the constitution has supervising and superintending control. Com. v. Denison, 24 How 66; Lagrange v. State Treasurer, 24 Mich. 468; Tawas v. Railroad, 44 Mich. 479; State v Baggott, 96 Mo. 71; Constitution of Missouri, art. 6, sec. 3; State v. Tracy, 94 Mo. 217; State v. Laughlin, 75 Mo. 366; McGary v. Rogers, 35 Ark. 298; Ex parte King, 27 Ala. 387; Ex parte Morgan, 30 Ala. 50; Ex parte Thornton, 46 Ala. 384; Merrill on Mandamus, sec. 198. (2) The Merriam suit was begun first. It was, in part, a proceeding in rem, and, by entertaining this suit, the Stoddard circuit court acquired plenary jurisdiction over the res, and had from thenceforth the legal priority of control over the res whenever, in the conduct of the suit, it became necessary or expedient to assume possession, as against all other tribunals, save those having a direct supervisory control over it, or one having some superior jurisdiction in the premises. Union Trust Co. v. Railroad, 6 Biss. 198; Gaylord v. Railroad, 6 Biss. 290; Judd v. Railroad, 24 Blatch. 420; Young v. Rollins, 85 N.C. 488; Heidritter v. Oil Co., 112 U.S. 294; Cooper v. Reynolds, 10 Wall. 308; Barton v. Barbour, 104 U.S. 126; French v. Hay, 22 Wall. 250; High on Injunctions, sec. 17. (3) If the order appointing Klotz on March 3, by Judge Wear in vacation, was void because the bill under which the order was made had not been filed, then, for the very same reason, the order of Judge Ross, made on the fourth of March, appointing Houck receiver, is also void. There is this difference, however. In Houck's case, there is no subsequent order fortifying his appointment; whereas, in Klotz' case, Judge Wear made an order on the thirteenth of March expressly ratifying and confirming the order of the third and in terms appointing Klotz anew. Bank v. Kent, 43 Mich. 297; S. C., 5 N.W. 627; Jones v. Schall, 45 Mich. 380; S. C., 8 N.W. 68; Jones v. Bank, 10 Col. 473; S. C., 17 P. 272-276; Anonymous, 1 Atk. 578; Ex parte Whitfield, 2 Atk. 315; Ex parte Mountford, 15 Vesey, 445; Kattenstroth v. Bank, 2 Duer, 632; Crowder v. Moore, 52 Ala. 220; Hardy v. McClellan, 53 Miss. 507; Mining Co. v. Holleman, 27 P. 413; Baker v. Backus, 32 Ill. 79; Re Hancock, 27 Hun, 575. (4) Respondents rely, for the maintenance of their cause and the defeat of relators, upon the action of Special Judge Houck on March 13 in sustaining the motions to dismiss Klotz as receiver. These orders are absolutely void for the following reasons: First. Houck was disqualified to act because he was the brother of Louis Houck, who was interested in the case. This disqualification exists by virtue of the moral sense of mankind, the common law and the statute law. Revised Statutes, 1889, sec. 3247; Oakley v. Aspinwall, 3 N.Y. 547; Dimes v. Canal Co., 3 H. L. 793; Post v. Black, 5 Denio, 67; Stockwell v. Township Board, 22 Mich. 345; Place v. Mfg. Co., 28 Barb. 503; Co. v. Keyser, 58 Cal. 322; Pierce v. Selden, 13 Johns. 190; Ins. Co. v. Price, 1 Hop. Ch. 3; Foot v. Morgan, 1 Hill N. Y. 654; Petition, New Boston, 49 N.H. 329; Hall v. Thayer, 105 Mass. 219; Taylor v. Com'rs, 105 Mass. 225; Reams v. Kearns, 5 Cold. (Tenn.) 220. Second. They were collusively and fraudulently entered; and this can be shown collaterally. Callahan v. Griswold, 9 Mo. 792; Higgins v. Peltzer, 49 Mo. 152; Mandeville v. Reynolds, 68 N.Y. 528. Third. They were void because the case of Merriam was not pending at that term of the court. It was only there upon a rule to show cause. The motions upon which these orders were entered were original motions, not a showing of cause in response to the notice. Newton v. Newton, 32 Mo.App. 162. Revised Statutes, 1889, section 2086, provides that, "Motions in a cause filed in term shall be filed at least one day before they may be argued or determined." State v. Underwood, 76 Mo. 630; Valle v. Picton, 91 Mo. 210; Cashman v. Anderson, 26 Mo. 67. (5) Judge Wear had the power whether in term or chambers to make the order of the thirteenth of March, confirming his previous appointment and appointing Klotz anew. This he did, and not only had it entered upon the record but also signed as judge, and had it filed with the clerk. Its efficacy does not depend upon the capacity in which it recites it was made, but upon the fact whether he had power to make it at the time it was made. Com'rs v. January, 94 U.S. 202; State v. Derkum, 27 Mo.App. 628; Garlick v. Dunn, 42 Ala. 404; Venable v. Curd, 2 Head, 582; Hensley v. State, 3 Heisk. 202; Carli v. Rhener, 27 Minn. 292; Revised Statutes, 1889, sec. 2193; Greeley v. Bank, 103 Mo. 212; Cox v. Volkert, 86 Mo. 511; State ex rel. v. Rombauer, 104 Mo. 619; Walters v. Co., 50 F. 316. (6) The Cape Girardeau court of common pleas had no jurisdiction to appoint a receiver under the bill, nor could it acquire, by virtue of the bill, any such jurisdiction, and its attempt in that behalf is absolutely void. Jones v. Bank, 10 Col. 473; S. C., 17 P. 272; French Bank case, 53 Cal. 495; Hugh v. McRhea, Chase's Decs. 466; Kimball v. Goodburn, 32 Mich. 12; Bangs v. McIntosh, 23 Barb. 599; Attorney General v. Bank, 1 Hop. 354; Attorney General v. Ins. Co., 2 Johns. Ch. 271; Neal v. Hill, 16 Cal. 145; Port Huron v. Judge, 31 Mich. 456; Wait on Insolvent Corporations, sec. 183; Gregory v. Gregory, 1 Jones & Spencer, 39; French v. Gifford, 30 Iowa 148. Judgment void: Fithian v. Monks, 43 Mo. 502, and cases cited. The following cases are clearly distinguishable: Railroad v. Humphreys, 145 U.S. 105; Railroad v. Trust Co., 23 F. 514 and 29 F. 618. (7) Upon the merits, the court should order the property delivered to the Stoddard court, where alone, as between it and the common pleas court, it can, according to the usual and orderly course, be administered.

John W. Noble, G. D. Reynolds and M. R. Smith, and Oliver & Miller, of counsel, for respondents.

(1) The relator must show at the commencement of the proceeding a subsisting, valid and clear claim in himself to the relief sought. High's Extraordinary Legal Remedies (1874), sec 10, and authorities there cited. This relator did not have these and cannot acquire them now. (2) The relator must recover, if at all, not only on the strength of his own title, but in strict accordance with the averments of the alternative writ, and to enforce a special duty imposed by law -- a duty resulting from official station or, if a corporation, expressly imposed by statute. Com. v. County Com'rs, 5 Rawle 75. It must be a duty resulting from official station. Dunklin County v. District County Court, 23 Mo. 449. (3) One and same writ cannot be directed to two or more respondents, having separate interests. 14 American and English Encyclopaedia of Law, p. 219; State v. Chester, 10 N. J. L. 292; State v. Railroad, 39 Minn. 219; State v. Reno Co. (Kan.), 16 P. 337; State v. Police Jury (La.), 3 So. Rep. 88; People v. Yates, 40 Ill. 126. The writ will not issue against a private citizen, and issues against a corporation only when the statute imposes a specific duty upon it. 14 American and English Encyclopaedia, p. 165, sec. 8; p. 152, sec. 7; State v. Powers, 14 Ga. 388. (4) The response of respondents to what relator calls his reply, offered to be filed at trial, is allowable and required by statute. Revised Statutes, 1889, "Mandamus," secs. 6812, 6813. (5) The relator should not be permitted to insert by amendment to writ new matter to strengthen his hold. (6) The Cape Girardeau common pleas had jurisdiction in equity. Fulenwider v. Fulenwider, 53 Mo. 439; Roth v. Tiedeman, 53 Mo. 489; Revised Statutes, 1879, sec. 1105; also 1889, sec. 3321; also 1889, p. 2219. Stare decisis et non quieta morere. (7) This is substantially admitted in relator's answer to respondent's return. (8) The particular action in which Mr. Houck was appointed receiver was within the jurisdiction of the common pleas court. Wabash, etc. Co. v. Trust Co., 23 F. 514; S. C., 23 F. 863, 868; S. C., 29 F. 618; Railroad v. Humphreys, 145 U.S. 105. (9) The judicial action taken in the appointment of Houck as receiver cannot be annulled or questioned by a proceeding by mandamus in the supreme court of the state. State ex rel. v. Wilson, 49 Mo. 146. Mandamus cannot control judicial action, nor be used to serve as an appeal or writ of error. State ex rel. v. Flad, 108 Mo. 614; State ex rel. v. Smith, 107 Mo. 527-535; State ex rel. v. Young, 84 Mo. 90. A writ of prohibition is the only writ by which a lower court can be restrained from the exercise of a jurisdiction it does not have. 12 American and English Encyclopaedia of Law, 311-316; Hander & Co. v. Keating, 26 Ark. 51; State ex rel. v. Lafayette Court, 41 Mo. 222; County Court v. Inhabitants, 10 Mo. 679; State, etc. v. Byers, 67 Mo. 704; Thomas v. Mead, 36 Mo. 247. (10) The relator has elected to proceed, and is proceeding, in the common pleas court on motion there filed by him, never withdrawn -- and there pending and about to be heard -- for same relief here asked. McClanahan v. West, 100 Mo. 322. Such action is a bar to mandamus. High's Extraordinary Legal Remedies (1874), sec. 188; Maynard v. Bond, 67 Mo. 315; Greeley v. Bank, 103 Mo. 212; Thompson v. Greeley, 107 Mo. 57. (11) The averment in the writ, that Mr. Houck...