The Wabash Railroad Co. v. Sweet

• Citation: 77 S.W. 123,103 Mo.App. 276
• Parties: THE WABASH RAILROAD COMPANY, Appellant, v. T. B. SWEET, Respondent
• Decision Date: 23 November 1903
• Court: Court of Appeals of Kansas

77 S.W. 123

103 Mo.App. 276

THE WABASH RAILROAD COMPANY, Appellant, v. T. B. SWEET, Respondent

Court of Appeals of Missouri, Kansas City

November 23, 1903

Appeal from Clay Circuit Court.--Hon. J. W. Alexander, Judge.

AFFIRMED.

Geo. S Grover and D. C. Allen for appellant.

(1) The demurrer of the defendant to plaintiff's petition admits to be true, all facts therein which are well and properly pleaded, and denies only its sufficiency in law. Shields v. Johnson Co., 144 Mo. 76; Butler v. Lawson, 72 Mo. 227; Goodson v. Goodson, 140 Mo. 215; Verdin v. St. Louis, 131 Mo. 26; Dodson v Lomax, 113 Mo. 555. (2) It is a well settled principle (clearly asserted in Missouri) as well as one of old law that where a party institutes a suit, and, before final judgment, dismisses it, and takes, or submits to a nonsuit, and, afterwards, without paying the costs in the first suit, institutes a second suit on the same cause of action, equity will restrain the prosecution of the second suit until the costs in the first shall have been paid. 1 Tidd's Practice (3 Am. Ed.), p. 538-9; Weston v. Withers, 2 Durnford & East 5, 11; Crowley v. Impey, 8 Taunton 407; Doe v. Stevenson, 3 Bosanquet & Puller, 22; Jones v. Barnard, 63 Mo.App. 501; Hewitt v. Steele, 136 Mo. 327; Perkins v. Hinman, 19 Johns. 237; Buckles v. Railroad, 47 F. 424; Buckles v. Railroad, 53 F. 566. This case reaffirms the principles decided in Buckles v. Railroad, 47 F. 424. (3) The relief invoked by the appellant is within the fundamental doctrine of a court of equity. Story on Eq. Jurisprudence (13 Ed.), sec. 861; 1 High on Injunctions (3 Ed.), secs. 103 to 106, pp. 81 to 84; Hyatt v. Wolfe, 22 Mo.App. 199; Railway v. Seifert, 41 Mo.App. 41; Sills v. Goodyear, 80 Mo.App. 133; Gordon v. Mansfield, 84 Mo.App. 372; Barrington v. Ryan, 88 Mo.App. 85; Damschroeder v. Thias, 51 Mo. 100; Bresnehan v. Price, 57 Mo. 422; State ex rel. v. Tiedemann, 69 Mo. 306; Turner v. Stewart, 78 Mo. 480.

C. H. Nearing for respondent.

(1) The question in this appeal is not whether a court, in the exercise of its discretion, can require a party litigant to pay the costs of a prior suit before proceeding with a cause before that court; but, rather, whether a court of equity, having jurisdiction of a party, can compel the payment of a judgment by restraining the judgment debtor until the judgment is paid. (2) This court has properly held in the case of Jones v. Barnard, 63 Mo.App. 501, cited by appellant, that the court before whom the present case is pending could, in the exercise of its discretion, prohibit the defendant from proceeding with the cause until the costs of the prior suit have been paid. That is not this case. That decision does not hold that the court of any other county, or any other judge, could exercise that discretion.

OPINION

BROADDUS, J.

This is a suit in equity to restrain defendant from prosecuting a suit against plaintiff in the circuit court of Jackson county, Missouri.

The substantial allegations of the petition are, that on August 23, 1902, the defendant herein instituted against this plaintiff, in the circuit court of Clay county, Missouri, where he then and has since continuously resided, a suit to recover damages in the sum of $ 5,000 for the alleged killing by this plaintiff of his minor son on July 9, 1902; that said suit came to trial on November 15, 1902; that at the close of his evidence the court sustained a demurrer thereto, but before entering up its judgment permitted plaintiff to take a nonsuit, with leave to move to set the same aside; that he thereafter took nonsuit, and the court rendered its judgment of nonsuit and adjudged to plaintiff herein all its costs in said case against him and awarded execution thereon. That the costs in said suit were $ 101.97, whereof $ 87.71 represented the sum therein expended by this plaintiff as costs; that defendant herein has never at any time paid said costs or any part thereof; that in December, 1902, he instituted suit against the plaintiff on the same cause of action in the circuit court of Jackson county, Missouri, where the same is now pending; that defendant is insolvent, and that his said action is vexatious and without merit. The object of the proceeding is to enjoin defendant from prosecuting his said suit until he has paid said costs, and if he shall not do so on final hearing to make said injunction final. A temporary injunction was issued in vacation by the judge of said court on the 10th day of January, 1903, which was duly served. The defendant demurred to plaintiff's petition, which was sustained by the court on the ground that it contained no equity, and dissolved the injunction. Plaintiff appealed.

There is no doubt about the authority of a court in a proper case to stay proceedings. "Where a second action is waged between the same parties for the same cause, the presumption is that the second action is vexatious, and unless the presumption is overcome the court in such case will order the proceedings stayed until the costs in the first suit are paid." Jones v. Barnard, 63 Mo.App. 501; Hewitt v. Steele, 136 Mo. 327, 38 S.W. 82; Buckles v. Railway, 47 F. 424. And it does not appear that the respondent denies such to be the law; but he does deny that such power exists in a court other than that in which the action is pending.

It will be observed that the proceeding is not, strictly speaking, an effort to interfere with the jurisdiction of the circuit court of Jackson county, but to restrain defendant from an alleged wrongful prosecution of an action in such court.

There is no doubt but what under the authorities in this State the relief asked here could have been obtained in the case pending in the Jackson county circuit court. In Jones v Barnard, supra, the defendant by motion...