C. H. Albers Commission Co. v. Spencer

BROWN, P. J.

— This is an action demanding equitable relief against certain grain contracts entered into between plaintiff and defendants as members of the Merchants’ Exchange of St. Louis.

In the year 1903, the plaintiff instituted five suits in the circuit court of St. Louis City against the Mer *373 chants’ Exchange and sundry members thereof, alleging certain wrongful conduct on the part of defendants which resulted in so monopolizing or “bulling” the wheat market that plaintiff was unable to purchase enough wheat to fill large contracts theretofore made by it for future delivery, whereby it was about to lose large sums of money which it had put up in the National Bank of Commerce (a defendant herein) as margins to guarantee the fulfillment of its said contracts of sale.

In its petitions, plaintiff prayed the cancellation of the contracts of sale made by it; that the money which it had put up in the bank -as margins' be returned, and that defendants and the officers of the Merchants’ Exchange be enjoined from in any manner enforcing said contracts for sale of wheat entered into by plaintiff and from applying the margins put up by plaintiff toward liquidating said contracts.

The five suits 'were, by an order of the circuit court, consolidated and a temporary injunction, issued, as prayed. Upon a motion to dissolve the temporary injunction, the trial court heard the parties, taking some 700 pages of testimony touching all the allegations of the petition, answer and motion to dissolve; and made an order dissolving the temporary injunction.

From the order dissolving the temporary injunction plaintiff appealed to this court, where the order of the circuit court was in all things affirmed in an able opinion by Valliant, C. J., 205 Mo. 105 , where a more complete statement of the case will be found.

"When the case was first here, the petitions of plaintiff and the evidence offered to support same were most carefully considered; and it was ruled that no cause for equitable relief had been made against the defendants, either by the petitions or evidence. ,

After the case was disposed of in this court, the defendants, on July 24, 1907, filed the following mo *374 tion in the circuit court to dismiss the consolidated causes:

“Now come defendants and move the court to dismiss the above entitled causes for the reason that this court is without jurisdiction to determine the same and that there is no equity in the said petitions for consideration of a court of equity, and that it has been so adjudged by the Supreme Court of the State of Missouri in these causes in the appeal heretofore taken by plaintiff from the order of this court dissolving the temporary injunction herein, as will appear from the opinion of said court on file in this cause.

“Wherefore, defendants ask that said causes be dismissed.” This motion was by the circuit court sus-» tained and the plaintiff’s consolidated causes of action dismissed; whereupon the plaintiff, after a timely effort to secure a new trial below, again appeals to this' court.

After this court’s decision on the first appeal, the plaintiff’s petitions were not amended in any material manner, so that no new issue had been presented to the circuit court at the time of the dismissal.

The plaintiff earnestly insists that the issues in this cause involve many constitutional questions as well as the construction of many Federal statutes, and that it has never had an opportunity to present this case to the court on its merits.

If the motion to dissolve- had not involved the sufficiency of the petition but only the solvency of the defendants, or some similar iásue, there would be substance in the plaintiff’s contention; but the motion to dissolve filed by the National Bank of Commerce challenged the plaintiff’s petition in. the following categorical manner:

“Now comes the National Bank of Commerce in St. Louis, one of the defendants in the above entitled cause, and having filed its answer in said cause, now *375 moves the court to dissolve the temporary injunction heretofore granted against it in said cause and for the following reasons, namely:

“First: Because plaintiff’s petition fails to state facts sufficient to entitle it to any relief at law or in equity.

“Second: Because the plaintiff’s petition fails to state facts sufficient to constitute a cause of action at law or in equity.

“Third: Because the facts stated in plaintiff’s petition are not true, as this defendant is informed and believes. ’ ’

The motions to dissolve filed by other defendants also charged that the petitions stated no facts entitling plaintiff to equitable relief.

The brief filed when this cause was first before us shows that the insufficiency of the plaintiff’s petition was one of the issues relied upon by defendants. On that appeal, we held: ‘ ‘ The plaintiff neither by its pleading nor its evidence has made out a case calling for the exercise of the jurisdiction of a court of equity.” [205 Mo. l. c. 120.]

As the only amendment to plaintiff’s petition after our first decision was by adding two new defendants as survivors of a defendant who had died since the trial in the circuit court, the issues have not been changed.

The query therefore arises, is á plaintiff whose petition states no cause of action entitled to more than one hearing? In other words, is a litigant entitled to a hearing on the alleged merits of his case when his petition contains no merits — no right to relief? We' think not.

It is true that where a petition states grounds which entitle plaintiff to relief at law or equity, the dissolution of a temporary injunction improvidently granted does not end the case. [State ex rel. v. Smith, 188 Mo. 167 .]

*376 Our statutes do not designate what shall be sufficient grounds for dissolving a temporary injunction; but it is undoubtedly a sound rule that when a petition states no sufficient grounds for relief, no injunction should issue; and if one has issued, it should be dissolved.' This rule is announced in 22 Cyc. 975, in the following language: “In eases where the injunction was improvidentlv granted because of the want of equity in the bill, it will be dissolved on motion either before or after answer. And it is immaterial that the answer does not deny the equities, or admits all the allegations of the bill, or is defective in form or substance.”

Plaintiff asserts that a petition in equity can only be dismissed upon a demurrer, and that as the filing of the answer waives the right to demur, this cause was improperly dismissed below on the defendants’ motion. Plaintiff relies on the cases of Brill v. Stiles, 35 Ill. 309 , and Hickey v. Stone, 60 Ill. 461 , to support its contention. However, under our Missouri code, which was intended to substitute substance for mere form in pleadings, we do not consider the cases cited as applicable.

Under our law, it is permissible to assail the sufficiency of the petition in a motion to dissolve a- temporary injunction in the same manner as by a general demurrer; and as the motions to dissolve herein-before noted contain all the elements of demurrers, the trial court and this court upon those motions, became vested with full power to adjudicate the sufficiency of the petition; and having determined that no cause of action is stated by the plaintiff, there no .longer exist any merits to try.

By our former decision, plaintiff’s petition became mere waste paper, and the circuit court properly ruled that the causes should be dismissed. [Johnson v. United Railways Company, 243 Mo. 278 .]

*377 There are quite too many litigants with meritorious causes who have never yet had a hearing and who are crying out to the courts for justice, to allow plaintiff more than one final hearing on the same proposition.

The judgment of the trial court dismissing plaintiff’s consolidated causes of action, is affirmed.

Ferriss and Kennish, JJ., concur.