August Gast Bank Note & Lithographing Co. v. Fennimore Ass'n, 79 Mo. App. 612

August Gast Bank Note & Lithographing Co. v. Fennimore Ass'n

79 Mo. App. 612 | Mo. Ct. App. | 1899

BLAND, P. J.

On the application of the appellant, and without notice to the defendants, a temporary injunction was awarded by the lower court, Restraining defendants from carrying on a strike against the lithographing business of plaintiff and against the use of violence toward the employees of plaintiff to force them to quit plaintiff’s employment, and prohibiting defendants from using violence toward persons wk .in the plaintiff might employ, to deter such persons from entering its employment. The temporary order was on July 10, 1895, served on the Eennimore Association and on thirty-four individuals, some of whom were not named as defendants in *616the petition. . On July 18, 1895, Eennimore Association No. 5 and thirty-two of the persons (who had been served with process of summons to answer the plaintiff’s petition), appeared in court by their counsel and filed their joint answer, and on the same day and at the same time filed their motion to dissolve the injunction. On the ninth day of September, 1.895, these defendants called up their motion to dissolve and asked for a hearing; plaintiff objected to taking up the motion, on the ground that the motion was made by a part of the defendants only, and that those who had not joined in the answer and motion, had not been served with process of summons, nor voluntarily appeared to the suit. The court overruled the objection and ordered the hearing of the motion to proceed; plaintiff refused to offer any testimony in support of the petition, whereupon the court sustained the motion to dissolve, dismissed the petition, and dissolved the temporary injunction, whereupon the defendants who had answered filed a motion for- an assessment of damages on the injunction bond. On the twelfth day of September, 1895, plaintiff filed a motion for new trial. At the October term, 1895, and on the twelfth day of October, 1895, other of the defendants filed a joint answer denying generally the allegations of the petition, and at the same time filed their motion to dissolve the injunction as to them. On April 17, 1896, the plaintiff asked to file a motion, whereby it moved the court to grant its motion for a new trial filed at a previous term, September 12, 1895, to set aside the former order of dissolution as to part of the defendants and to set the case down for hearing as to all of the defendants. The court refused to permit plaintiff to file this motion, to which ruling it duly excepted. The court then ordered that the trial be proceeded with; plaintiffs refused to take any part in the trial, whereupon the court dissolved the injunction and dismissed the petition as to the defendants who filed the second answer, whereupon these defendants filed motion for assess*617ment of damages on the injunction bond. At the April term, 1896 (day of the term or of. the month not stated), plaintiff filed its motion for rehearing, which motion and also the one filed on September 12, 1895, were on the twentieth day of April, 1896, by the court overruled, whereupon plaintiff appealed to the supreme court, which court afterwards transferred the cause to this court for decision, for the reason that appellate jurisdiction of the cause is vested in this court.

No disposition whatever was made in the trial court of either of the motions for assessment of damages on the injunction bond, and the cause is as to said motions yet pending in the circuit court, but the fact that no final judgment in the cause has been rendered by the circuit court, does not prevent the plaintiff from appealing from the orders of the circuit court dissolving the injunction. R. S. 1889, sec. 2216, as amended by Session Acts of 1891, p. 70. The record does not show when the motion for new trial was filed for review of the second order dissolving the injunction. As it does not affirmatively appear that this motion for new trial was filed in four days from the making of the second order dissolving the injunction, this second order is not before us for review on the appeal, unless error is apparent from the face of that part of the record which culminated in the order, or is apparent upon the face of the whole record of the cause. There is no irregularity in the filing of the second answer and second motion for dissolution, nor in the order itself, and if irregularity exists in any of the proceedings, it must be found in the record taken as a whole. The contention of appellánt is, that the order of dissolution first made is irregular in that it was made on the motion of a part of the defendants only and at a term when a number of the defendants had not been served with summons, had not voluntarily appeared, and were not before the court. This is the question and the vital one to be considered.

It appears from the pleadings that Eennimore Association No. 5 is officered by a president, a secretary and treasurer, and *618that its membership is made up of artisans. The petition alleges substantially that a strike was ordered by the association for the purpose of interfering with appellant’s business, by persuading its employees to quit work for plaintiff, and failing in this to force them to quit by intimidation and violence, and by the same means to prevent others whom plaintiff might employ from working for it; that a strike committee was appointed by the association to carry out these purposes and that said committee with other members of the association did in fact, by violence and intimidation, both force employees of plaintiff to quit work and prevented others whom plaintiff employed from working. It clearly appears from the allegations of the petition that the strike, intimidation and violence complained of were not set in motion by the individual effort of any one or more of the defendants, nor by all of the defendants acting in concert, but that the strike was ordered by Fennimore Association No. 5, acting through and by its officers, and that the intimidation and violence alleged were carried on, supervised and directed by a committee of Eennimore Association No. 5, duly selected and appointed for that purpose. In short, that the strike, its incidents, and the means and methods of its enforcement were all under the control and subjected to the orders of the duly appointed officers and agents of the association. The persons composing these officers and also the strike committee are all named in the pleadings and were all joined in the first answer and motion to dissolve. The gravamen of the petition rested upon these defendants, the officers and strike committee of Fennimore Association, and they are the most essential, if not the only necessary parties defendant. In such circumstances we do not think there was error in dissolving the injunction as to them, without waiting until the plaintiff might bring in all the defendants named in the petition by the service of process on them. Spelling in his work on Extraordinary Relief, volume 2, section 1065, says: “It is the general rule that an *619injunction properly granted will not be dissolved until all the defendants have answered. But to this rule there are many exceptions. The rule properly goes no further than to require that there shall be no dissolution before an answer by the defendants on whom the gravamen of the bill rests.” In volume 10, page 1080, American and English Encyclopedia Pleading and Practice, it is said: “It is enough if those defendants answer upon whom the gravamen of the charge rests.” To the same effect is Adams v. Bank, 10 N. J. Eq. 540; Cape Sable Company’s Case, 3 Bland 606, and numerous other cases cited in note 1, p. 1676, 2 Daniel’s Chan. Pl. and Prac. High on Injunctions, volume 2, page 1167, says, that “the answer is required of those defendants only upon whom rests the gravamen of the charge, and when such defendants have fully answered denying the material allegations of the bill, the injunction may be dissolved, notwithstanding other defendants have not yet answered.” Under this view of the first order we discover no irregularity in the second order of dissolution. It is proper, however, to suggest that but one final judgment can be rendered in the cause, and that the two motions for assessment of damages on the injunction bond, though filed by different defendants and at different terms, should both be heard at one time and be treated as one motion. With the concurrence of the other judges, the judgment is affirmed.