State ex rel. Merriam v. Ross

Gantt, P. J.

This is a proceeding commenced in this court looking to the punishment of Leo Doyle and Louis Houck for alleged contempt of this court. It grows out of and is supplementary to the case of State ex rel. Merriam v. Ross, commenced on twentieth day of July, 1893, and decided by this court March 24, 1894 ( 122 Mo. 435 ; 25 S. W. Rep. 947 ), wherein a writ of prohibition was granted forbidding said Ross, the judge of the Cape Girardeau court of common pleas, from further taking cognizance of an action or proceeding commenced in said court by the St. Louis, Cape Gi *266 rardeau & Fort Smith Railway for the appointment of a receiver for said railway company..

After promulgation of the opinion and judgment of this court in State ex rel. Merriam v. Ross, a motion for rehearing was filed by the defendants in that case and overruled June 4, 1894. Pending the motion for rehearing the relator, on the tenth of April, 1894, filed suggestions for attachment in said cause against Leo Doyle and Louis Houck, and asked for a rule requiring them to show cause why they should not be punished for contempt of the writs, orders, and jurisdiction of this court, and upon the overruling of defendants’ motion on said June 4, 1894, a citation was ordered directed against Houck and Doyle to show cause why they should not be punished for contempt of the prohibitory order of the chief justice of this court of date July 27, 1893, and in force during the pendency of that cause.

The citation was founded on a suggestion of the relator Merriam, that said Doyle as trustee had applied by petition in December, 1893, to the circuit court of Cape Girardeau county in an action wherein said Leo Doyle, trustee, was plaintiff, and St. Louis, Cape Girardeau & Fort Smith Railway Company, Edwin Hidden, trustee, and The Mercantile Trust Company, of New York, trustee, were defendants, for a foreclosure of certain mortgages on said railway in which he was trustee; that the parties defendant in that suit had been duly brought before said circuit court and such proceedings had that said Louis Houck in February, 1894, had been appointed receiver of the railway and other property of said St. Louis, Cape Girardeau & Fort Smith Railway, subject to his prior appointment as receiver thereof by the Cape Girardeau court of common pleas. It further'appeared from the exhibits filed that Houck had qualified as such receiver.

*267 To the citation above mentioned Messrs. Doyle and Houck made a return on the eighteenth of June, 1894, and moved this court to quash the rule issued in that matter and to discharge them from further answer thereto. This return and motion for discharge were based substantially on the foregoing facts.

No further action was taken by this court upon said contempt proceeding until the October term, 1894. On the twenty-first day of March, 1895, a renewed application was made, based, however, on the same facts, accompanied by a motion for a writ of seizure of the railway property under the judgment in the original proceeding for prohibition and fot the delivery of said property to the receiver appointed by the Stoddard county circuit court.

The motions of Houck and Doyle asking to be discharged from the original citation were filed at the term at which the motion for rehearing in the main case was acted upon by this court in banc. Their said motions for discharge have never been acted upon and will be first considered.

Neither the provisional prohibitory order in State ex rel. Merriam v. Ross, nor the final judgment of this court in that case undertook expressly to deny or abridge the right of Leo Doyle to invoke the jurisdiction of any other court than that named in the order and judgment, to wit, the Cape G-irardeau court of common pleas. The provisional order was in these words:

“Now on this the-- day of July, 1893, comes the said Edwin G-. Merriam and presents to the undersigned chief justice of the supreme court of Missouri, in vacation, his suggestion for a writ of prohibition (which said suggestion has heretofore been filed with the clerk of the said supreme court) to be directed to the said Alexander G-. Ross, judge of the Cape Girardeau court of common pleas, and to Louis Houck, as president of the *268 St. Louis, Cape Girardeau &Fort Smith Railway Company as well as receiver thereof, The St. Louis, Cape Girardeau & Southern Railway Company, Leo Doyle, The-Mercantile Trust Company and Edward Hidden, prohibiting them and each of them from further pursuing and holding cognizance of pleas in a certain case in said court, wherein the said St. Louis, Cape Girardeau & Fort Smith Railway Company is plaintiff and the said Mercantile Trust Company, Leo Doyle, and Edwin Hidden are defendants, the same being a civil action for the purpose of appointing a receiver of all the assets of the said St. Louis, Cape Girardeau & Fort Smith Railway Company and the undersigned judge having seen a°nd heard the suggestion and the record filed therewith on consideration thereof doth order that the said Alexander Ross, judge of the Cape Girardeau court of common pleas and the said Mercantile Trust Company, Edward Hidden and the said Louis Houck appear before the honorable supreme couft of Missouri on the tenth day of October, 1893, and show cause if any they have why a writ of prohibition should not issue, as prayed in the suggestion of said Merriam.

“Witness my hand the 27th day of July, 1893.

“Francis M. Black,

“Chief Justice, Supreme Court,

“State of Missouri.”

It was obviously not within the proper scope of that order or the judgment resulting from that proceeding to perpetually enjoin Leo Doyle from seeking the aid of any other court of competent jurisdiction to adjudicate upon the rights he claimed in respect to the subject-matter of that suit. It can not certainly be asserted that the said provisional order or the subsequent judgment purported to put Doyle under any such restraint.

It was held by this court in the principal case that *269 the Cape Girardeau common pleas court had no jurisdiction to appoint a receiver for said railway company in the action commenced therein for that purpose by said railway, a power to do .so having been assei’ted by said common pleas court. But it is evident that the judgment of this' court denying the common pleas court jurisdiction of an ex parte application for a receiver upon the ground that such a proceeding was not a suit within the contemplation of the law, could not logically or necessarily have the effect of barring Leo Doyle from asserting whatever rights he had in or to the property in question, as trustee, for the several bondholders, in the several mortgages, creating him trustee, in a court possessing the authority under the constitution and laws of this state to hear and determine such causes. The determination by this court that one court has no jurisdiction of a particular proceeding for the sole reason that it was not an action commenced therein in the contemplation of law, can not have the effect of depriving all other courts of jurisdiction of actions commenced therein which do meet all the requirements of the law in form as well as substance.

It is a non sequitur to say that because a railroad company can not by itself come into a court and on its own petition have a receiver appointed to take charge of all of its property, and when such a court is prohibited from taking cognizance of such a cause, therefore all other courts having jurisdiction to foreclose mortgages and appoint receivers are alike prohibited from assuming jurisdiction of foreclosure proceedings regularly and formally commenced by a creditor of said railroad. Such a conclusion is entirely illogical and can, in our opinion, have no such effect in. law.

The questions proposed for decision in the principal ease ( 122 Mo. 455 ) were clearly and plainly stated *270 by our worthy brother, and present chief justice as follows: “Is the power and control which, the Cape Girardeau Court of Common Pleas has assumed and is exercising over the corpus and affairs of the St. Louis, Cape Girardeau & Fort Smith Railway Company, through a receiver appointed as aforesaid [i. e., upon the ex parte application of the railroad itself], authorized by law? and, if not, has this court power, under the constitution and laws, to prohibit the further exercise of such control, at the instance of relator?”

After a full discussion the conclusion was reached by this court that the proceeding was not a suit and the power to appoint a receiver only existed when a suit was pending, and therefore the appointment of the receiver was void and of no effect. Being void, it was open to the collateral attack of Merriam who was a creditor' of said railroad, as appeared by the allegations of his petition for the writ.

It was then held that the Stoddard circuit court had jurisdiction of the action commenced by the relator Merriam against said railway company, Leo Doyle, and The Mercantile Trust Company in said court, on the third day of March, 1893, and was entitled to retain it. Beyond the question of jurisdiction the opinion declined to discuss other questions involved, in these words (loc. cit. 462):

“The subsequent proceedings in that court in that case are important only for the purpose of showing that the jurisdiction thus obtained has been retained, asserted, and maintained from the beginning. Whatever irregularities, if any, that may have occurred in the exercise of that jurisdiction, can be corrected only in that court; and, to insure such correction, whatever questions may arise as to the manner of its exercise by that court may be determined here on appeal or writ of error, but can not be the subject of the present inquiry, *271 which goes no further than to the jurisdiction of these two courts.'1'1

The office of a writ of prohibition is to suspend all action and prevent any further proceeding in the prohibited direction.

In the principal case all that was sought at the hands of this court was to prohibit the Cape Girardeau court of common pleas from further exercise of the power it had assumed it possessed, under the act creating it, of hearing and determining the cause, then pending therein, and likewise- the several parties to said proceeding from taking further steps in that action.

It was clearly within the jurisdiction of this court to hear and determine the question whether said court was in that case exceeding the jurisdiction prescribed for it by the law of this state, but it would be an unusual exercise of our own jurisdiction to extend that extraordinary writ, issued for that purpose alone, so as to prohibit actions in other courts which were not open to criticism either as to their form or the subject-matter thereof and clearly within the jurisdiction of such other courts.

In United States v. Hoffman, 4 Wall. 158 , the' supreme court of the United States, through Judge Miller, discussing a suggestion made in that case that although the district court had complied with the provisional rule and the particular ease in which the rule had been granted had been dismissed, there were still other cases in said court of the same character, and the rule ought to be made peremptory, said (loc. cit., p. 162): “The suggestion that there are or may be other cases against the relator of the same character can have no legal force in this case. * * * A writ in this case could not restrain the judge in the other cases by its own force, and could affect his action only so far as *272 he might respect the principle on which the court acted in this case.”

While, therefore, this court had the power to adjudge that the common pleas court in that case was exceeding its jurisdiction, this court could not extend its own jurisdiction by enlarging the scope of the writ of prohibition' beyond all precedent by employing it to settle the conflicting pretensions of rival receivers, each claiming priority of right so long as each of the courts appointing them had jurisdiction to make the appointments and to deal with the subject-matter. The supreme court of the United States in U. S. v. Hoffman, supra, approved the common law case of Hall v. Norwood, Siderfin 166, in which it was held that “possessions are never taken away or disturbed hj prohibitions. ’ ’ The writ was never designed to be used as a short cut to reach a decision, in. the court of last resort, of clashing claims based on conflicting process of the trial courts. Its office is preventive rather than remedial.

In Thomson v. Tracy, 60 N. Y. 31 , the court of appeals defines the scope and office of the writ. Says that court: “It has a proper but a restricted and. limited office, and it can not be enlarged so as to bring within its scope and operation questions merely collateral or incidental to its direct purpose, or more or less intimately connected with such purpose and object. It can not be made a drag net by means of which all controverted and litigated questions between individual suitors' may be brought into court and tried and determined.” * * *' The “statute does not change the character of the writ or permit any question except that of jurisdiction to be tried in the proceeding inaugurated by it. It * * * ' can not take the place of a writ of error, or other proceeding for the review of judicial action, or of a suit in equity to prevent or redress fraud. (People v. Seward, 7 Wend. 518 .)”

*273 In Ex parte Pennsylvania, 109 U. S. 174 , Chief Justice Waite, speaking of the proper function of this writ said: “The evident purpose of this application is

to correct a supposed error in a judgment of an admiralty court on the merits of an action. That can not be done by prohibition. The remedy, if any, is by appeal.” Hull v. Superior Court, 63 Cal. 179 ; More v. Superior Court, 64 Cal. 345 ; Ex parte Roundtree, 51 Ala. 51 ; Mastin v. Sloan, 98 Mo. 252 ; State ex rel. v. St. Louis Ct. of Appeals, 99 Mo 216.

If it had been proper for this court to have entered into an examination of the merits of the eases pending in the Stoddard or Cape Girardeau courts and the right of possession of said railway property, it would have been necessary to determiné as has not yet been determined, what effect should have been given to the plea of tender and payment of all the interest due on the indebtedness which formed the groundwork of the Merriam suit in Stoddard county.

In Philips v. Bailey, 82 Mo. 639 , this court unanimously held that tender before sale of the interest due without the principal is sufficient to prevent a sale by a trustee under a deed of trust, although the deed provided that in case of failure to pay the interest as it becomes due, the entire debt, principal and interest, should mature and the property be sold to pay the same. That to permit a sacrifice of the owner’s rights after such a tender would savor of oppression. And the same .conclusion was reached in Whelan v. Reilly, 61 Mo. 565 .

In Railroad v. Soutter, 2 Wall. 510 , the supreme court of the United States, Judge Miller delivering the opinion, held, in a foreclosure proceeding in which a receiver had been appointed, that a tender of the debt due gave the mortgagor an absolute right to his property, and a. discharge of the receiver. Said the *274 court (p. 522): “It is a right which the-party can claim; and if he shows himself entitled to it on the facts in the record, there is no discretion in the court to withhold it. ”

In the principal case in this court it was shown by the return that the railroad company had tendered the full amount due on its bonds held by relator, but that tender was not considered by this court. In our opinion it was not competent for this court in the prohibition case to determine in this court the right of the receiver appointed by a court other than the common pleas court to take possession of the railroad property covered by various mortgages thereon, and especially in view of the nature and extent of the lien sought to be enforced and the remedy asked in the Stoddard circuit court.

This court has held in State ex rel. Klotz v. Ross, 118 Mo. 23 , that the original appointment of Klotz as receiver by the Stoddard circuit court had been set aside and vacated and the validity of any subsequent supposed order looking to the same end was not discussed by the opinion of the majority of this court in State ex rel. Merriam v. Ross, 122 Mo. 435 .

The order made by Judge Wear in vacation of the Stoddard circuit court after that court ■ had in term time set aside his provisional order of appointment of March 3, 1893, and after affidavits for change of venue had been filed in said court, based upon allegations of prejudice on his part, and continued until the next regular term of said court, was not necessarily rendered valid because the Cape Girardeau court of common pleas had no jurisdiction to make the appointment of Louis Houck as receiver. The invalidity of the common pleas receivership did not and could not of itself vest the right of control of this railway property in the receiver of the Stoddard circuit court and *275 so confirm his disputed appointment or make it an adjudicated, matter. That question we take it may still be open for review by this court on appeal or writ of error from the judgment of that court. The order in the principal case should not receive such a construction as would hereafter preclude inquiry into the regularity or lawfulness of' an appointment made under such circumstances.

We are, therefore, of opinion that in so far as the judgment of this court purported to determine the standing and right of the receiver of the Stoddard county circuit court by adjudging that he was the “cle jure” receiver of that court, which may be assumed (as that court had appointed only one receiver), that judgment was improvidently entered, and should not to that extent be enforced, but that it should be modified by eliminating that portion of said final order. This we hold may be lawfully done upon the motions now pending which were filed at the term at which the judgment was rendered and the motion for rehearing denied.

For these reasons we do not think the defendants were guilty of contempt of this court by taking part in the proceedings of the Cape Girardeau circuit court, and they should be discharged from the first citation and also from this last rule based upon the same facts. The rule is discharged.

Barclay, Burgess, and Robinson, JJ., concur. Brace, C. J., Sherwood and Macearlane, JJ., dissent.