Willow Springs C. Co. v. Mountain Grove C., P. & P. Co.

• Decision Date: 03 October 1917
• Docket Number: No. 2176.,2176.
• Citation: 197 S.W. 916
• Court: Missouri Court of Appeals
• Parties: WILLOW SPRINGS CREAMERY CO. et al. v. MOUNTAIN GROVE CREAMERY, POULTRY & PRODUCE CO. et al.

197 S.W. 916

WILLOW SPRINGS CREAMERY CO. et al. v. MOUNTAIN GROVE CREAMERY, POULTRY & PRODUCE CO. et al.

No. 2176.

Springfield Court of Appeals, Missouri.

October 3, 1917.

Application by the Willow Springs Creamery Company and another for writ of prohibition against the Mountain Grove Creamery, Poultry & Produce Company and others. Writ denied.

John C. Dyott, of Willow Springs, for relators. V. O. Coltrane, of Springfield, for respondents.

STURGIS, P. J.

This is an original proceeding for a writ of prohibition against the defendants Mountain Grove Creamery Company and Hon. E. P. Dorris, judge of the circuit court of Howell county, Mo., to restrain the enforcement of an order of said court, made in a cause there pending, wherein the said Mountain Grove Creamery Company was plaintiff and L. N. Moore and others, acting under the name of the Willow Springs Creamery Company, were defendants. Said order was made on July 31, 1917, at the July term of said court, and is as follows:

"The order of the court, heretofore entered, that the Mountain Grove Creamery Company be permitted to inspect the Willow Springs Plant is hereby reaffirmed, and the Willow Springs Creamery Company and L. N. Moore are to furnish a monthly written statement to the Mountain Grove Creamery Company showing receipts, expenses, and disbursements."

The facts leading up to the said order are these: L. N. Moore, who had been conducting a creamery business at Willow Springs, on leased premises, with all the necessary apparatus, machinery, and fixtures, took steps to form a corporation in which he was chief stockholder, to be known as the Willow Springs Creamery Company. The capital stock of the proposed corporation included the fixtures, machinery, etc., of the plant then being managed and operated by said Moore. Thereupon the Mountain Grove Creamery Company brought suit by injunction in the Howell county circuit court, setting up that all said property belonged to it, and that the plant at Willow Springs was merely a branch of its business managed by Moore as its agent, and asking that Moore and his associates be enjoined from taking possession of, or converting to their own use or to the use of a corporation about to be formed, the lease on the property known as the Green Hills Creamery Plant, together with the equipment, machinery, and other personal property thereto belonging. It seems that the real controversy in that case was over the ownership of the creamery property at Willow Springs.

This injunction suit was tried at the April term, 1917, of the Howell county circuit, on April 6th, resulting in a judgment for the plaintiff, and the temporary injunction was made perpetual, by which Moore and his associates and the incipient corporation were restrained from taking possession of, or interfering with, said property. The then defendant, Moore, his associates, and the corporation then in the making at once took steps for an appeal to this court, and such appeal was granted on April 7, 1917, and leave given to file an appeal bond in the sum of $200 within ten days. The effect of the judgment and restraining order was to give the then plaintiff, defendant here, the right to immediate possession to this property; but an understanding was reached between the contending parties that Moore and his associates might retain possession of the property and continue the business at Willow Springs, pending the appeal, on giving an indemnity bond in the sum of $10,000, and permitting an inspection of the property and business by the then plaintiff at 30-day intervals. In any event, Moore and his associates gave both bonds, one a regular appeal bond for $200 and the other an indemnity bond for $10,000, reciting therein that the appellants were to remain in possession and control of the said property pending the appeal, and conditioned to prosecute the appeal with diligence, comply with the judgment of the appellate court, and to hold the plaintiff harmless against loss or damage, waste, or injury to the property, and account for all moneys collected, etc. This bond was presented to and approved by the judge in vacation, and at the time of the approval the following order was made and indorsed thereon without objection:

"Mountain Grove Creamery Company has the right to inspect and examine the Willow Springs Plant and property every 30 days, in presence of L. N. Moore or manager thereof. E. P. Dorris, Judge."

Under this somewhat irregular and informal procedure the then defendants, Moore and his associates, were permitted to retain possession and control of the disputed property and business. At the next, or July, term of the Howell circuit court, the then defendants, relators here, presented a motion asking for a modification of the order permitting an inspection of the property by the Mountain Grove Creamery Company, and at the relator's instance the court made the order now complained of, and above set out.

We are not concerned at this time as to the merits of the injunction case, nor as to the justice of the orders complained of, but only as to whether the circuit court of Howell county or the judge thereof exceeded its jurisdictions in making the orders complained of. If the court had jurisdiction, then any error made in the exercise of that jurisdiction must be corrected by appeal and not by prohibition. State ex rel. v. McQuillin, 260 Mo. 164, 173, 168 S. W. 924.

The relators urge that when the court granted the appeal on April 7, 1917, its jurisdiction over the case and the property involved was...