*1 REPORTS, APPEAL MISSOURI v. Sammelmann. Laumeier granting to same thereafter. leave file the taken tions are directly presented, point may not have been While exceptions filing in a writ question aof bill of the court, have here before we error such as question to decide, are called we and the ultimate case. in that was decided we think, entitled relators are to therefore, follows, It petition, prayed and their motion in their relief for pleadings is It is or- well taken. for peremptory issue, mandamus that our writ of dered sign respondent, judge, compelling to al- as circuit prayed exceptions for relators. the bill of low concur. Becker, J., P. Danes, J., Appellant, v. SAMMEL LAUMEIER, H. H. AGNES MANN, and OLIVER SAMMELMANN, CHARLES alias SAMMELMANN, SAMMELMANN, OLLIE 1, 2, NOS. and De 3, 4, 5, MOONSHINERS ; SAMMELMANN and fendants AGNES CHARLES Respondents.* SAMMELMANN, Appeals. Opinion Court Louis Filed December St. 1925. Damages: Independent Motion to Bonds: Assess INJUNCTIONS: 1. injunc- proceeding Action. A motion to assess on on an something after-judgment proceed- than a is more mere tion bond ing independent and is the nature of an in the same cause ac- ingrafted on the suit an for tion on expedition. sake Appeals: Necessary Motion -: -: for New Trial: -:2. Exception Up Bring proceeding for Review. Matters In a injunction bond, assessment of motion for for necessary bring up exception matters trial motion, and, nothing view, absence of but the record appeal. may be considered Sufficiencyof Motion to -: State -: Cause of -: Ac- on an assessment tion. Motions bond action, especial- to constitute a cause of facts sufficient state held v. Sammelmann. ly any where the motions manner attacked appellate below and are assailed court. for the first time in the Moving 4. -: -: -: to Assess Evidence: Defendant *2 Damages Injunction Temporary Restraining Party on Or- Bond: to style caption appears der. all of case as it in the of injunction caption being record entries in an as in the suit the same restraining order, conclusively that a held establish de- to fendant, moving of the assessment party was a to order. Entry: Restraining 5. -: -: Order: Record Controls -; — : Damages As to Parties Entitled to on Bond. Restrained and Where time, petition restraining term was filed and a order made in parties determining the order entered of record controls and restrained and entitled to on bond by judge signed filed in cause. and Injunctions: of Clerk APPELLATE PRACTICE: Certificate Circuit 6. Impeaching Appellate Records Cannot Thus Record: Court: Filed person Be Falsified. that a was record entries showed Where the party cause, court would not in a clerk of the circuit defendant ap- filing permitted falsify a certificate the record filing pellate stating suit at time of the inadvertently put party in the record as one the name of style the suit was con- defendants thereafter as such the record. tinued on Restraining Assessment of Dissolution: Order: INJUNCTIONS:
7. Attorneys Damages Fees to Recover Entitled on Bond: Defendants Expenses. proceeding assessment of dam- and Other In a recover ages held entitled bond on expenditures attorneys, made loss of time for services injunction, to one de- getting dissolved as rid of the hearing, preliminary final hear- as to the other on on fendant ing. Appeal (Anno); J., Injunctions, 2. Section 756 32 C. 1. *Headnotes J., Injunctions, 905; Error, J., C. Section 759 3. 32 C. Section 3 Injunctions, (Anno); J., Injunctions, 5. 32 (Anno); 32 Section 762 C. 4. J., 2287; Error, Appeal 4 (Anno); O. Section J., 748 Section C. County.— Charles Court St. Appeal Circuit from tlie Judge. Edgar oik, B. Eon. Woolf Affirmed,
470 REPORTS, 218 MISSOURI APPEAL
LaugJilin, Frumberg, Blodgett appel- & Russell for lant. expires
(1)
temporary restraining, order
A
expenses
counsel fees
limitation of its own
terms,
litigation
on a bond
be allowed as
cannot
procure
given
when the
order,
procurement
the defendants
is not dissolved
High
expires by
1
on
but
reason of its own limitations.
Joyce
Injunctions,
Injunctions (4 Ed.)
1
sec. Ill;
3;
Injunctions (4
High
32
Ed.),
L.
28;
C.
R.
306;
J.
G.
Nebr.
70;
sec.
Kittle
White
DeLamater,
Indemnity
Co.,
Lumber
Aetna
Wash. 569;
Pine
Houghton Cortelyou,
Co. v.
(2)
52 L. Ed.
208 U.
expenses
litigation
fees and
cannot be
Counsel
allowed
legal
procuring
were rendered
unless
services
injunction.
Buford v. Packet
3Co.,
dissolution
*3
App.
App.
(3)
Neiser v.
46 Mo.
47.
159;
Thomas,
Mo.
Damages
cannot be assessed when
are
defendants
something they
legal right
doing
strained from
have no
Indemnity
to
Pine Lumber
Aetna
Co.,
do. White
Co. v.
Beithan,
42
25
569;
Idaho, 706;
Wash.
Guthrie v.
Parks
(4)
obligations
O’Connor,
v.
principal
Emil
P.
(1)
appellate
permitted
An
court is not
to review
exception
touching
or
matters
merits of the cause
brought
at the trial unless the matters were first
to the
attention of the trial court
a motion for a new trial.
Woodring,
App. 652,116
State v.
135Mo.
S. W. 449; State
471
1925.
y.
Perringer v. Un-
796;
v.
47
674,
145 Mo.
S. W.
Burdett,
(2)
(a) Where
254
703.
known Heirs
W.
Ranb,
S.
days
four
after
is not filed within
a motion for new trial
exception
judgment
no
rendition of
or
matters
verdict
open
1919;
1456,
court. Sec.
R.
S.
review
Long’
Joseph
28
v.
Robinson,
166;
v.
125
S. W.
1,
St.
Mo.
(b)
77.
Hawkins, 178 Mo.
77 S. W.
Where
103,
motion for
record fails
show
abstract of the
days
review
trial,
trial
filed
four
after
new
within
proper, and
the record
to the record
if
will be limited
must
affirmed.
is free from error
Tracy
Tracy,
v.
260;
Hall
al.,
Hall v.
et
S. W.
(3)
SUTTON, C. This instituted in the county, circuit court of St. Charles for the assessment of proceeding’ on an bond. The was by instituted two motions filed the suit. One by respondent Agnes of these motions was filed Sammel respondents jointly. by mann alone, and the other both The motion of Sammelmann was filed November joint at the term, 1923, October motion of respondents February filed both term, was March at the
1924. The motions consolidated and tried together as one motion.. allege day motions substance that on the 2nd plaintiff’s application, said November, 1923, court,
granted temporary said cause a restrain- issued ing Sammelmann and order Charles as well as the other defendants Sammelmann, restraining enjoining named in said said de- suit, continuing committing fendants certain from al- fully leged temporary restraining acts set forth said order order; said was injunc- plaintiff that the execute and file an conditioned penal bond sum five hundred tion dollars by required; court conditioned as the clerk of said law duly plaintiff execute such bond which did was having approved by said bond been court, said executed surety; H. Ben Emmons as temporary restraining order had been issued after said hearing preliminary was had said court on the 26th day determine whether November, 1923, to tem- said porary restraining should be dissolved or order con- hearing preliminary effect, tinued or dis- said Agnes Sammelmann, the defendant but was as to solved defendant to the Sammelmann, Charles not dissolved *5 v.' Sammelmann. pending a final bear- but was ing. ordered continued effect allegations motions, addition to these Agnes alleges that reason Sammelmann motion of ox- order, the issuance necessary temporary injunction, it for her to became attorneys represent employ her at consult with and large expense hearing, put she to a said that attorneys represent employing her; defend and that pay, paid, obligated to her at- has and has become she representing torneys her in said causó and matter for fifty hearing, the sum of two hundred and at said surety, plaintiff for and the Ben H. Em- dollars which to her the terms are liable under and conditions of mons, joint motion of the aforesaid Agnes bond. And alleges and Charles Sammelmann Sammelmann term, court, March of said final hear- that at the ing upon hearing in- said said was had junction theretofore issued was dissolved to all of except Oliver Sammelmann; the defendants defend- and Charles Sammelmann have ants Sammelmann attorney paid liabilities and incurred fees in the out legal hundred dollars services seven rendered sum of attorneys by attorneys of said them services necessary in the defense of said defendants, and attorneys charges said made reasonable; that the thereto defendants lost much in addition valuable damage said to their suit, defense of in the time they paid dollars; and out the two hundred sum designated expenses fifty for other neces- dollars sum properly sary make their defense. in order May term court, at the of said June On upon before the said motions with- court, had trial was testimony jury, conclusion of the at the there- a out July advisement, was taken under matter May court, said rendered term of at said respondents appellant in favor cap- judgment, omitting said which motions, said follows: is as tion, 218 MISSOURI APPEAL REPORTS, July again 30, 1924,
“And now on come the parties and the hereto, the *6 by Sammelmann Sammelmann, and Charles their at- torneys, having and the court heretofore heard evidence and taken under advisement as submitted, the motion o£ Agnes defendant Sammelmann filed on November 26, of assessment on the the bond, and motion of the defendants Sammel- mann and Charles Sammelmann filed March 21,1924, for on the assessment the bond, and having evidence on both the motions been heard at the having and said motions been at the time time, hearing by the. court consolidated and treated as one finding the court doth now announce motion, its in favor against plaintiff injunc- on the given, and the court tion bond makes an allowance to the defendants Sammelmann Charles Sammel- attorney for their fee in mann the sum two hundred fifty seventy-five and a dollars, further sum dol- expenses loss of time for their lars reasonable con- hearing nected
order. adjudged “Wherefore, it is ordered by and decreed ’ that the defendants by given herein be bond sum of assessed at judgment accordingly $325, rendered against plaintiff H. H. Laumeier and in defendants’ of $325, favor in the sum and it is ordered that the costs hearing plaintiff.” be taxed judgment plaintiff appeals. Prom this by motion for a No new appellant trial was filed days four after judgment. within the rendition of August Such a motion was filed on days 8, 1924, nine judgment, rendition of after the was afterwards Respondents overruled court. contend that since no motion for a quired filed new trial was within the time nothing law, therefore but record may appeal; appellant considered on this whereas necessary contends that no motion trial exception bring np matters for review. support appellant of his contention relies Supreme well settled our rule announced Court City of St. Louis v. 18 W. Brooks, as follows: purposes
“For all of a review in this court, the rulings of the trial on motions made after final judgment footing stand a different from those made during progress cause. This the- court will review quash lower court on action a motion to pay money execution, over execution, set aside irregularity, aside to set an execution though sale, like, and the there is no motion for a rehear- ” ing or new trial. *7 proceeding a motion of character on the in- proceeding stanced in that mere case is a further after- judgment relating affecting the cause, same judgment, process the or control of the the issued there- proceeding on for its enforcement. But the on motion damages injunction something- to assess on an bond is judgment proceeding than a mere more after in the same independent cause. It is in the of an nature action the engrafted bond the suit for expedition. proceeding In the such sake the same may injunc- made tried as suit issues be in a on the may obligors plead payment, tion bond. The aor might any pleaded other be or defense that lease, independent an prac- proceeding suit on the bond. The has independent tically all characteristics of an the action judgment may in a final culminate obligors or for more of the amount of one upon which costs, assessed execution may judgment a rendered in in- an issue case dependent why see no reason suit. We can more dispensed be motion for a trial should a trial case in the case of a than issues made independent action on the bond. REPORTS, 218 MISSOURI APPEAL supported expressions is This view of our Ry. Supreme Joplin & Court in Western Co. v. Kansas Memphis City, R. Co., Ft. Mo. Scott l. c. as follows: S. W. failing prescribe pro- statute, the course “The given practical should cedure, can construction. This only effectively by separating proceed- be done ing damages, making from that for proceedings recovery independ- provision ent of suit. The of the statute place for the assessment of takes the of a suit on the bond.” support,
Our we think, view also finds in Erskine v. proceed l. c. Loewenstein, 305, which was a plaintiff against ing motion of the a stockholder of corporation, a against after favor of corporation, judgment. his to realize on objected respondent that case to the consideration imputed court of an error of the trial court, exceptions the bill did not reason that show that the plaintiff excepted at the time to the action of the court in overruling thereupon motion, said: misapplication
“We think this in- rule by respondent. applies rule voked That to motions such principal proceeding, as are incidental to the trial of prin- and not to a like this where the motion is cipal proceeding, litigation. the foundation of the This place, statutory provision, motion under takes equity, law, suit in at common to reach assets in *8 the stockholder; and, hands of the to a certain extent, petition. should be as a The refusal of treated grant finding is the a of the issue for the de- motion remedy fendant. The for the error of court in mak- ing finding exception, for new is motion trial overruling at the time, to the action of court this motion, was this case.” as done are further confirmed in our view the fact We that agree the learned on both of this case counsel sides that 477 for assessment of the motions petitions in the of
bond are nature are to be re- garded appeal, record exception to the and that no of court there- necessary preserve or motion for on, trial, appearing for review here errors the face of the mo- judgment. or tions appellant
But the insists that the motions do not a cause of action. state facts sufficient constitute It urged fatally defective is they that the are because motions allege respondents (a) were
fail to restrained that any legal right; (b) respond- that from exercise anything (c) restraint; ents to rid themselves of did respondents damaged that because issuance (d) any there was breach of the con- order; (e) respondents any incurred bond; dition of the expense the order. in connection with support urged in insistence that It is also petition action, the obli- to state a fails cause surety principal gations joint obligees, no all and that assessment bond are toas motion of less than can be had on obligees, only this case whole number joined obligees part in the motions. any manner in were not attacked motions us far the record before shows. below, so in this court. They first time assailed for the it clear State, in this with of the decisions view objections here to the suffi made out discussion that appel ciency be ruled the motions must Spencer, Mo. v. 608, Commission Co. [Albers lant. Railways Kern v. United 321; W. l. c. 139 S. 642, 645, App. 259 W. and cases 821, l. S. 237, c. 232, 214 Mo. Co., Holloway, l. Holloway 274, c. Mo. v. cited; there Hammerslough City Kansas Build 536; 15 S. W. 285, ing, l. Akin Savings 87; c. 79 Mo. Ass’n., Loan Pomeroy App. 117 W. Mo. Rice, 19; Peake v. W. l. 21 S. c. Fullerton, *9 218 MISSOURI APPEAL REPORTS, (Mo.), Bell, 65 Mo. McManus v. Butler 213 S. W. 447.]
Appellant Agnes further contends that the defendant Sammelmann is not entitled recover party reason that she not a temporary the straining order. This contention is in direct contraven- express tion of averments of the motions, if the the petition and record entries suit are to regarded proceeding as record ap- assessment pellant helped thereby. is not style caption
The of the case as set forth temporary restraining entered record in the injunction suit is as follows: “H. H. Laumeier, Plain- Agnes tiff, Sammelmann, al., v. et Defendants.” style caption The set forth in as petition suit is as follows: “H. H. Laumeier, Plaintiff, Sammelmann, Charles Sammelmann, alias Ollie Sammelmann, Moonshiners Defendants.” 1, 2, 3, 4, Nos. ap-
The order recites that it pears by,.the petition is entitled to the re- enjoins lief therein, demanded “the defendants” trespasses committing’ fully from certain set forth in specifically charges Agnes petition the order. The Sam- along with the nomine, melmann eo other defendants, committing threatening to commit un- certain trespasses designated, prays therein lawful for a injunction, temporary restraining order and and also for injunction, perpetual restraining “the defendants” trespasses alleged. from the commission The un- trespasses charged against the defendants in lawful trespasses petition same are the restrained restraining order. style appears caption case as it record entries suit, all of caption order, to-wit: same “H. Laumeier, Plaintiff, H. et Sammelmann, Defendants.” al., *10 purports a to be
"What order judge by appears signed of the court have been style November 2, filed in the cause on The caption as forth in the of this the case set so-called tem restraining porary as order is follows: “H. H. Lau m Plaintiff, v. Charles Sammelmann and Oliver meier, Sa Sammelmann, Ollie and melmann, alias Moonshiners Nos. body 2, 5, and Defendants.” The 6, this so- respects restraining order is in all identical called body restraining of the order entered of record petition restraining The was filed and the cause. made in term time. In such case the order was speak by by paper signed by not its record and must restraining judge filed in the cause. The order therefore, must control, as record, entered judge signed restraining by so-called disregarded. must be There been filed here a certificate of the has clerk stating filing at that of the of the circuit court time suit the name Sammelmann inadvertently put in record as one of was the de- style of and that thereafter suit was fendants, plain too on the record. It is for ar- continued as gument may permitted be clerk thus fal- that the sify, records of the certificate, his court. solemn regarded it must be as record, state of conclusively Sammelmann was a established order. party to the “Moonshiners Nos. defendants, 1, 2, It seems and the cause never served, and 6,” were 3, 4, 5, them March dismissed as to respondents urges appellant further damages reason to recover not entitled are expenses, attorneys, al- time, loss
the services pre- and about the leged, and incurred rendered on final the suit hearing defense liminary REPORTS, APPEAL MISSOURI hearing, Appellant shown the motions. relies on the doctrine announced Albers Commission Co. v. Spencer, supra, as follows: soundly
“It could not be contended that services resisting application counsel directed to porary injunction an for a tem- could assessed as bond. The caused must fol- precede . it. . . 'The low cannot fees should be procuring limited to services in dissolution appeal below, should not include services injunction.’ . . . after the dissolution Cases relating partition, attachment, divorce and other suits attorneys’ appeal, where fees are allowable on on due timely application, readily distinguishable are principle from suits where the *11 against bondsmen and where the assessed terms and ob- interpreted by jects guide of courts, and range limit the of as to counsel to fees the ac- the.restraining lifetime of to tual and services in lifting by dissolving injunction; thereby that order barring resisting out fees for services the issue of the temporary writ, on the one hand, and fees for services resisting the re-establishment dissolved and de- injunction, on the other.” funct Clearly tempo that is not case. In this prior rary order or was issued preliminary hearing, so that the caused precede do not but it. follow There were appeal rendered on after no services dissolution injunction, no claim for and is made services of chai;acter. no There were services rendered behalf resisting, Sammelmann of Charles re-establishment injunction, any claim a dissolved no is made for character of services. There were services rendered resisting Sammelmann re-establishment injunction, appear but it the dissolved does not any temporary allowance was made therefor. The re expire straining order did not limitation of time on preliminary hearing. It day continued in Froemsdorf. State v. dissolved, by order or action some
force until it was preliminary Upon having hear effect. the ing temporary defend was dissolved as de and continued force ant Sammelmann hearing, until final fendant whereupon Sammelmann Charles required The bond it dissolved. co as the law to as broad appears sufficiently It its lifetime. extensive expenditures time rendered, lost, made, services were getting rid the tem defendants, behalf of both they injunction, porary entitled to recover App. 147, 117 S. W. [Akin Rice, 137 Mo. therefor. Building, Hammerslough City Loan and v. Kansas Holloway, Holloway Savings 80, l. 87; c. Ass’n, 79 536.] l. 15 W. 103 Mo. c. they presented, questions but do arise are
Other proper, not before us record therefore review. judgment recommends that
The Commissioner circuit court be affirmed. opinion foregoing PER CURIAM: The Sutton, opinion adopted’as of the court. The is C., accordingly Danes, affirmed. circuit court is P. J., Nipper, concur. JJ., Becker, Respondent, OF HENRY MISSOURI, STATE *12 FROEMSDORF, MATTIE FROEMSDORF Appellants.* Opinion Appeals. January 5, Court Filed
St. Louis Sufficiency Gaming AND INFORMATION: House: INDICTMENT charging up setting keeping of Indictment. An indictment house, gaming section Revised Statutes violation of language sufficient, charging the offense held statute. App. 21S Mo. —31.