State ex rel. Busch v. Dillon, 96 Mo. 56

State ex rel. Busch v. Dillon

96 Mo. 56 | Mo. | 1888

Bbacb, J.

Petition for writ of prohibition against respondent, judge of the St. Louis city circuit court, to restrain him from further action in a proceeding commenced in that court on the suggestion of GeorgeGlaesner against Adolphus Busch, President of Anheuser-Busch Brewing Association, et al., said proceeding being an attachment for contempt in violating a decree of injunction rendered against them in' a certain cause theretofore pending in said court, wherein the said Glaesner was plaintiff and said Brewing Association et al., were defendants, and which cause had theretofore been appealed to the supreme court.

Two questions are presented for discussion on the-return of the respondent, to which the petitioners demur. (1) Bid the állowance of the appeal to the supreme court on affidavit and bond, in the action in which the decree of injunction on final hearing was rendered, have the effect of dissolving the injunction decreed' by the circuit court, no previous temporary injunction having been granted or bond given in the cause?. (2) If the decree of injunction remained in force after the appeal to the supreme court, did the circuit court, in which the decree was rendered, have jurisdiction to punish for contempt a violation of that decree after such appeal ?

The law directly applicable to the cause and by which these questions are to be determined, is as follows (R. S. 1879, sec. 2703): “When it shall appear by the petition that the plaintiff is entitled to the relief demanded, and such relief * * * consists in restraining the commission * * * of some act of *59the defendant, the commission of which during the continuance of the litigation would produce injury to the plaintiff * * * an injunction may be granted to stay such act.”

Sec. 2710 : “No injunction, unless on final hearing, or judgment, shall issue in any case * * * until the plaintiff execute a bond with sufficient security to the other party in such sum as the court or judge shall deem sufficient to secure * * * all damages that may be occasioned by such injunction.”

Sec. 2722: “The remedy by writ of injunction shall exist in all cases * * * to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages.”

Sec. 1055: “Every court of record shall have power to punish as for criminal contempt persons guilty of * * * wilful disobedience of any process or order lawfully issued or made by it.”

Sec. 3710: “Every person aggrieved by any final judgment or decision of any circuit court * * * may make his appeal,” etc.

Sec. 371,3: “* * * The court from which an appeal is prayed shall make an order allowing the appeal and such allowance thereof shall stay the execution * * * when the appellant * * * together with two sufficient securities shall, during the term at which the judgment appealed from was rendered, enter into a recognizance,” etc.

Sec. 3718: “ On filing such recognizance there shall be a stay of all further proceedings upon the judgment áppealed from,” etc.

Sec. 3776: ‘£ The supreme court in appeals * * shall examine the record, and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law,” etc.

*60No system of jurisprudence would be complete that did not embrace within its scope a plan for the prevention of wrongs, as well as compensation for violated rights. The reason for the existence in our system of the preventive writ of injunction is, that in very many instances the commission of an act violative of the rights of others is not susceptible of adequate compensation in damages. In statutes enacted for the purpose of regulating the administration of this remedy by the courts, the substitution of the inadequate' remedy of compensation in damages for a wrong perpetrated, for the adequate remedy designed to prevent the perpetration of that wrong is never contemplated, is foreign to, and at war with, the spirit and purpose of such enactments, and such a result cannot flow from a proper construction of them. Nothing can be found in the letter of the foregoing enactments, or in the history of our legislation on the subject to warrant it.

To secure a party against an infraction of his rights that would be adequately remediless in damages, the statute has provided that, before these rights are definitely ascertained and declared, a provisional writ shall issue restraining the threatened wrongful act pending the litigation in the circuit court. In such cases the law requires that a bond be given. When those rights are definitely ascertained and declared on final hearing in that court, the writ issues, restraining in perpetuam the threatened wrongful act, in which case no bond is required, but whenever issued, it operates in praesenti, and for the time being, to restrain that act. It commands no act to be done, issues in contemplation of law the moment the order is made (High on Inj., sec. 21; McNeil v. Garratt, 1 Cr. & Ph. 98); operates upon the then status of things between the parties in respect of the subject-matter in controversy, and decrees that they stand fast forever.

From this situation, in case of error, the law affords *61defendant relief by appeal to an ultimate tribunal, where a review of the action of the circuit court on its final hearing may be had, and where he may show that the circuit court was mistaken, that he ought not forever to be prevented from doing the act he threatened and intended to do. If he succeeds, the decree will be reversed, the injunction dissolved, and he may proceed to the execution of his will in the matter, but, surely if he fails, it was not intended that his adversary, at the termination of the litigation in which he has been successful, should find himself remitted to an inadequate remedy for the adequate one which he sought, and whiah the law promised him, the defendant having been permitted during the pendency thereof to do the very thing which deprives him of that adequate remedy. To preserve the remedy in all its efficiency, pending the litigation in the circuit court, the law requires a bond. To preserve the remedy after final hearing in the circuit court, the law requires ño bond. That the law ought to require one in the latter case, is the force of the argument of the learned counsel for the petitioner, the answer to which is that it doesn’t. That the court might have required one pending the appeal is a question.not before us for determination. The appeal bond given operated as a supersedeas only on the process of execution; it suspends the performance of acts commanded to be done. The appeal operates on the judgment as a final determination of the rights of the parties, and suspends' its finality. State ex rel. v. Lewis, 76 Mo. 375; Cohn v. Lehman, 93 Mo. 574.

Our law regulating practice in injunction and appeals is essentially the same as that prevailing in the federal courts and those of the other states, and the overwhelming weight of authority is that injunctions ordered on final hearing on the merits are not vacated by an appeal from that decree. A stay of proceedings from its nature operates only on orders and judgments *62commanding some act to be done, and does not reach, injunctions. This was assumed to be the law in City of St. Louis v. St. Louis Gas Light Co., 82 Mo. 349, and in Cohn v. Lehman, supra, and- among the great number of cases that might be cited, the following will be found to be in direct support of this doctrine: Railroad v. Railroad, 71 N. Y. 430; Graves v. Maguire, 6 Paige [N. Y.] 379; Power v. Athens, 19 Hun, 165; Tel. Co. v. State ex rel., 8 West. Rep. 552; Randles v. Randles, 67 Ind. 434 ; Mining Co. v. Fremont, 7 Cal. 130 ; Swift v. Shepherd, 64 Cal. 423; Robertson v. Davidson, 14 Minn. 554; Slaughter House cases, 10 Wall. 273; Hovey v. McDonald, 109 U. S. 150; Leonard v. Ozark Land Co., 115 U. S. 465.

In the opinion in this last case, Waite, C. J., remarks: “It is true that in some of the Slaughter House cases the appeal was from a decree. making perpetual a preliminary injunction which had been granted in an earlier stage of the case, but the fact of the preliminary injunction had nothing to do with the decision, which was ‘ that neither an injunction nor a decree dissolving an injunction is reversed or nullified by an appeal or writ of error before the cause is heard in this court.’ This doctrine in the general language here stated was distinctly reaffirmed in Hovey v. McDonald, and it clearly refers to the injunction contained in the decree appealed from, without reference to whether that injunction was in perpetuation of a former order to the same effect, or was then for the first time granted.”

It follows from what has been said that the answer to the first question is that the decree of the circuit court of St. Louis on final hearing in the case stated was not dissolved on the perfection of the appeal therein, but remained in full restraining force against the defendants therein, and will continue to so remain until that appeal is decided. Being so in force, the answer to the second is, that whoso violates it is guilty of a contempt of the *63■court that rendered it, and may be proceeded against in an independent quasi-criminal proceeding by way of attachment and punished for such contempt by that -court.

The demurrer to the return of the respondent is overruled, writ denied, and judgment for respondent -ordered.

All concur, except Ray, J., absent.