*1 .721 v. thе merits. judgment on from the appealing [Hill Their merits. Block, supra; v. Fleming, supra; Bush supra; Davis v. Barton, Allen, Woolery, 525; 39 348; Mo. State v. Railroad, Mo. Markey 185 v. Grimm, 239 278; rel. v. Mo. Welch, 125 State ex App. Mo. v. Dilligner’s, Admr., Lodge, 1084; 328 v. Mo. 177; Clark v. Grand 571; Columbia Brew. Meyer Broadwell, 83 Mo. 180; 26 Mo. v. Higgins, Co., 226 605; Moseley v. Life Ins. Mo. App. 140 Forgery, Mo. Co. v. Co., Railroad, Thommason v. Ins. 566; App. supra; Newcomb v. 224; 309 Clark v. B. L. Falkenhainer, Mo. supra; ex rel. v. State ways in are F., App. 99 No there Mo. doubt 687.] general but those above detailed suf appearance entered their support ruling against them. a ficient to and find examined the cited defendants them not
We have cases go facts, where in’point. They re- no than hold question lating jurisdiction person the’ of the defendant petition, hor in the he does appear neither the return not waive filing plea matter a motion to dismiss or a abatement grounds setting filing containing afterwards ánswer up plea plea a merits. the motion or combined with In the case n question jurisdiction bar appeared upon at the matter of the proof process issuance service of' needed no extraneous being situation, This question, facts'to show defect. stated, only by. prоper
before could béen raised motion or plea jurisdiction, incurring penalty general appearance. jurisdictional As the matter not appear did on the face alone, the petition demurrer, it. waived
Defendants, brief, points set forth a number which con stitute mere propositions statements of abstract lawof and are too : any question indefinite raise for our consideration. [Hanchett Palm, Duffy Bond Co. v. 220 673; Allen, S. W. v. S. W. 857.] judgment is affirmed. All concur. City Exchange State ex rel., Kansas al., Missouri Co. et Re Respondents. lators, v. Harris, al., Hon. Brown Judge, etc., et (2d)W. S. 632. Appeals. City April 1, Court of 1935. *4 Winger, Reeder, & Barker relator, Mazaré for Independent Dairies, Inc.
J ames P. Aylward, George Aylward V. and Terence M. 0 ’B.rien for relator,- City Exchange Company.
J. G. Margus, E. D. Martin and G. B. respondents. Silverman for REYNOLDS, original C.- This proceeding prohibition is an instituted in relators, sought this court in which it is prohibit Harris, 4 Brown of division number Honorable judge County, enforcing Circuit Court injunction of Jackson re- or straining granted order him in the case of Johnson and others
725 n against pending 434011 in said relators, being numbered cause these thereof, assigned bearing division number for to said injunction reason that said allegations solely upon granted notice to without testimony any hearing petition thеrefor without granting making the' of said- order said jurisdiction, of his the' enforcement thereof and are excess authority judge power, and court. filing duly verified, provisional
Upon petition, relators' respondent the Honorable writ was this court to the issued judge Harris 4 of Circuit Court of Jackson of division number -County, Missouri, City; return, at Kansas all -the in..which , . joined, has been made thereto. Upon filing return, the relators filed motion for judgment
. (1) following grounds: .The pleadings, upon the based allegations- -peti- deny, does but admits the not .of- .return essential returq. - (2). allege prohibition. tion' for .The does .not n yray avoidance, further,facts,.by of confession con- .which, and. reasop legal .why the' prohibition stitute a writ not issue of. should n (cid:127) - - . : against . „ them. . . their; hearing, upon- February 1935, filed.upon ,27,
In brief respondents-move prohibition quash preliminary rule-in application of the -permanent to dismiss relators’ issuance Relators’, assign following writ reason .printed therefor.:. to-comply (a) fails in this: brief of.this.court Relators’ rules with-the statement, their, pages 1, not of the. ease on so-called brief .and of -fact, is,-in complete a clear and the case. -It -of no statement -state gives-no аll.- It at as to the case .ment information facts-in-the or.the -issues involved. This is a1 the court’s rule and section violation of (b) duty Revised 1929. have-failed Statutes Relators assignments heading make under “Points and- sufficient Au should, why thorities” show peremptory writ be ordered. -points First, granting temporary injunction are: “In made with notice, -jurisdiction.” the circuit court in excess -its out acted remedy.” Second, proper Third, “Prohibition is the “Under the ad respondents’ judgment mission in return relators motion for on the pleadings provisional prohibition should be sustained and writ of permanent.” Respondents heretofore issued should be made com plain points that such as made are a mere statement conclusions why being given reasons the court and counsel *5 argument are left to search the record posi and for reasons for these any. tions, if
It is original not insisted in the motion that pro- the relators in an ceeding, this, such required present assignment are give reasons required to
errors; should it is insisted that but may know what and counsel they make so that the points for the they are. gathered plead- case, from history of appears from this
It Honorable than other ings record, respondents, that the and the engaged producing, dairymen in the business Harris, Brown City, Mis- Kansas delivering products in selling, milk and its and having corporations their vicinity; souri, the relators are engaged in the City, Missouri, and places in Kansas of business delivering sorting them,- them collecting milk bottles, business of engaged in the busi- rightful them is also théir owners and one' of milk; prior to selling, delivering that, buying, sometime ness Exchange four July Company filed 14, 1934, City the relator herein, against respondents replevin suits certain various Dougherty,' Harris, J. than Brown J. other the Honorable before' justice county, Mis- township, Kaw Jackson peace of the and for souri, which, upon changes venue, to Louis J. were transferred county, justice township Kaw Mazuch, peace another for said July 14, 1934; pending and which Louis Mazuch on before J. were suits, were, relators on replevin under writs issued in said thereto, respondents prior interfering said date and with the various wagons of their various stopping conduct businesses trucks, seizing being taking 'and used therefrom the bottles respondents pour- furnishing milk to customers therefrom, interfering ways; that, the milk -in other July herein, on than various other Harris, judge, behalf, respectively, Honorable Brown on their own' jointly, severally, might persons and on behalf of all who there- join prosecution after same, of the filed in the Circuit Court of County, Missouri, Jackson equity relief against (being herein) defendants therein same as the relators by which petition sought (the it was to restrain defendants therein herein) from, among things, other prosecuting certain replevin pending justice Mazuch, suits J. peace before Louis Kaw township, changes county, Jackson on from J. J. venue justice Dougherty, peace, instituting proceed- from ings recovery entering of milk bottles and from trucks of the respondents herein, various respondent other than Harris, Honorable Brown judge (plaintiffs petition) in demanding taking them; that, upon filing milk bottles from petition, Harris, the Honorable one judges assignment judge of said court who at the was the time thereof, assigned court, said cause to division number 4 of said which division he was judge, forthwith, at the thereupon, time
727 (defendants against herein restraining order relators granted the allegations thereof npon' the therein) prayed petition, in said given any testimony and hearing of withont notice withont any opportunity- be heard proceedings and withont relators of said ’ ... being given them.- relators, alleges herein for the writ petition relators’ Dairies, Inc., are Exchange Independent City Company and Kansas of-Missouri, with organized laws State under the corporations, City, Kansas Mis- places business at principal- their offices acting among things, in ; engaged, other both relators souri used, by exchange of bottles clearing houses for the various delivering milk producer-distributors to cus- distributors provide Missouri, City, Kansas in order to in and tomers about whereby may comply with the all said milk distributors method hav- Missouri, milk bottles prohibiting of the State use of laws registered (sections by others than the owners thereof brands 1929) comply 12449-12455,inclusive, Revised Statutes of Missouri Missouri, City, Kansas the use of prohibiting with the ordinances of having by others than the bottles brand Of another distributor thereof, person shall part providing ‘-‘No hold for sale owner bearing person;-firm, or milk in a name of other sell bottle milk, company corporation person which unless said -be the or sells firm, duly agent person, corporation” company authorized of said (Ordinance 56134, being an the General ordinance revision 867-, City, Missouri, particularly Ordinances of sec. art. V. of Kansas may respect chap. thеreof), order that each distributor right of the -distributors in the other bottles property marks; bear their various brands of that the Honorable Brown Harris duly acting judge elected, num- qualified, now the of division County, Missouri, Kansas ber 4'of the Court of Jackson Circuit at - duly elected, City, and is and at all mentioned the times therein qualified, acting presiding judge of said Circuit Court of Jackson county, Missouri, Missouri, all at Kansas and-that of the other City, partnerships respondents caption named in the are individuals and engaged production in the milk in and distribution of and about City, Kansas Missouri. July petition that, Saturday,
It is on relators’ T4, 1934, herein, except the Honor- Harris, petition able in a cause filed certain .numbered in the Circuit Court of Jackson County, at City, against relators, copy being at- verified part tached to relators’ and made a thereof and marked A,” “Exhibit sought which suit relief was to restrain from, among things, prosecuting replevin other certain suits justice instituting proceedings for the pending in belonging entering plain- 'recovery of bottles trucks herein) taking demanding (respondents tiffs therein and from herein), The (respondents specific bottles from therein plaintiffs acts enjoined sought prayer respоndents’ are set out *7 n .petition, A . thereto-. Exhibit attached day further.'alleged petition upon is in the same .It relators’ relief,was injunctiye respond- Upon'-which'Said petition filed, the. acting: presiding as- Harris,, ent Brown as the 'and the. Honorable Court, signment judge County, at of Jackson the Circuit 4,of City, assigned circuit division said said number cause court, being judge, there- the division of which he was is and that whatsoever upon, forthwith,, without notice to nature relators hearing any knowledge without testi- of-relators and without mony- injunctive solely allegations petition upon said fc?r he, Honprable relief, respondent Harris, entered said Brown' restraining; enjoining an prose- said cause from order-in relators "euting pending- replevin pro- instituting suits further .and. from character, ceedings performing acts, of that from certain particularly restraining order, all as more set in a copy.of out said which, B” petition .attached to relators’ and marked “Exhibit is n (cid:127) , part <andmade a thereof reference. ' that;the petition alleges .-Relators’ respondent further the.Honorable maintaining is restraining, said in order- force and -effect Brown-Harris threatening is will continue so to maintаin order in said against force and will 'enforce said order contempt pro- relators frpm this, ceedings, prohibited doing unless court, so order of an respondent that of said Honorable act Harris in issuing giving said order without notice to relators an or n opportunity for relators to respondent be heard and in the.act of said threatening were, to enforce .said are excess juris- in. .fhe diction, authority power,, and of said court that were and said acts Statutes,of prohibited provisions are. of section. -Revised Missouri and that both are residents State- themselves, Missouri and concealing not were or manner what- evading process soever at the time the suit filed and no facts showing imperative an necessity justifying for said order its is- prior hearing suance without notice and irreparable damage relief and no could would plaintiffs herein) (cid:127)resulted the said said cause (respondents if given notice been required had to relators as by law. relators. n alleges
Relators’ in substance adequate remedy by appeal an because the value of their busi nesses, vastly in excess each; thousand dollars mainly one lies goodwill going-concern and their ánd value each company expeditious ex dependent business life 'is a continuous and may change of milk bottles in all of their customer-members order that respective have a constant return their for use in their bottles businesses"; the2injunction prohibit order will relators from during pre will prosecuting respective appeal' their businesses adequate vent from with" an supplying' them clustomer-members prevent relators, during respective return of their bottles and will pendency getting possession bottles appeal, com (other possession into than the Harris) rightfully Honorable Brown to which relators are entitled among and will result confusion various milk distributors as legal rights respecting bottles, going- end that the goodwill respective concern value and of relators’ will be customers irreparably damaged; emergency thereby that an created under -effective, which relators adequate, have no or efficient at law remedy otherwise, interposes by unless this writ prohibition, its and, provisional granted unless a prohibition by'this court, writ of *8 wholly remedy. prayer relátors are A without a formal for writ followed. resрondents’ petition (upon
(cid:127)In equity which the or restraining order, complained petition in relators’ for prohibition herein, by1'respondent Harris, was judge) made the Honorable Brown alleged it is plaintiffs that the same is in behalf of filed therein named, respectively, jointly, severally, and and'in behalf of all other persons join might who prosecution théréaftér in the of the same. It is further therein the'plaintiffs (respondents that therein herein) engaged partnerships individuals ahd business-of producing delivering and milk products and milk in and about City, Missouri, marketing products exelusivély Kansas and City, Missouri, the' Kansas engaged market and have been so' for many years; was, filing petition, there at the time and for twenty years had" been more than a uniform established cus usage' tom and of the milk City trade and business in Kansas to exchange sell milk glass and deliver in the pint, bottles of one-half quart pint, capacity, commonly oné and one bottles, known milk which bottles sealed, according when filled were to ordinances and requirements city, paste-board of said with a paper cap, upon legibly plainly printed and person the name of the who bottled milk, together with the time the same was bottled аnd the kind of milk contáined; and character therein that, when so bottled and sealed, milk was delivered to ultimate customer in the bottle being opened; the seal 'without that the bottles used weré all alike size, type, and uniform in appearance, quality, value; and that the bottling require City, Missouri, market demands of the Kansas delivery daily; of several hundred thousand bottles milk and ,to adjacent territory said milk therefor is produced City, Missouri, place production or sold to and bottled at the bottled.; bottled, pasteurizing plants milk and there when stores, milk is restau distributed trucks to the'consumer and places City milk rants, and other business Kansas where consumer; that, the customs bottles are resold to ultimate under necessary, usages business, essential, of the milk trade it is exchanged milk milk be for another unavoidable that one bottle capacity accepted milk bottle and that a bottle of certain capacity;; that, full satisfaction of bottle same other.milk person, firm, bottles and filled each result,. purchased intermingled corporation engaged in milk business become circulating milk constitute a common mass of bottles throughout trade. ... injunctive alleges сharges Such for relief (being herein), defendants therein the relators the.purpose others, injuring plaintiffs similarly situated, therein and .had unlawfully conspired together agreed with each in- exchange interchange terfere with the bottles for the purpose of preventing plaintiffs conducting therein from respective usages businesses in accordance.with the and cus- common deprive toms the milk thereby business and them their law- rights advantages business.es; ful and the emoluments (being herein) that defendants therein conspired had so together agreed with each other to take and restrain plaintiffs, general therein all bottles in and to assert the .circulation possession thereof. Such proceeds relief then set out-the acts to. steps, *9 said, done and taken the defendants therein to carry out con- spiracy pursuance and, among things,, and alleges in thereof other that, carrying conspiracy, in out said the City defendant Exchange organized Company express carry- purpose for the of wrongful . out the scheme of the depriving defendants in the plaintiffs bottles; that, their milk of in of furtherance said scheme conspiracy, defendаnt, and the Independent Dairies, Inc., gathered up milk which bottles had been purchased and introduced common dairymen into the mass of bottles all of the and delivered City Exchange the same to the defendant Kansas Company, defendant, asserted, latter it is wrongfully right pos- claims the of thereto; nothing session pays that such defendant for said bottles but rightful nevertheless refuses'to deliver the same to the owners there- rightful paid by of unless it be therefor; the owners that such de- milk and not receive said engaged is in the business does fendant not business; of in milk ordinary in usual course trade the bottles the usages business, in of the milk the bottle that, under the customs and right with the is is sold the contents thereof and which milk contained bottle, possession disposition and the thereof, to use said the the of milk; that, upon purchaser for thereof are conferred harassing injuring plaintiffs their trade purpose these business, stop plaintiffs in which make the defendants the trucks trucks, delivery get pretending upon of milk said en route.and by them; that, by doing, look for so defendants con- to bottles claimed n rights. tinually trespass upon plaintiffs’ It -in said for relief is further injure conspiracy plain- in furtherance of their sсheme to therein, therein be instituted tiffs the defendants caused to numerous right justice peace pretending to assert a to of the courts suits designates bottles; suits replevin certain so filed justice peace parties and the each and the of the before whom to alleges suits, complained It that said so the same filed. were of, were, upon motion and affidavit herein Harris).transferred (other respondent the Honorable than.the changes Mazueh, justice peace J. Louis venue to another of. alleges that, serving writs township. pretext It under the Eaw action, defendants, replevin in the above entitled causes of . through agents employees, and' went. the trucks . wagons plaintiffs and there directed the constable of.
justice Dougherty, justice peace within and J. J. court of (which pour milk and milk township, for said Kaw to out the delivering purpose sealed for plaintiffs had bottled and customers) bottles; poured was then and there out of the pretended replevin the defendants caused said writs of served engaged delivering milk plaintiffs to their at times when part customers, defendants with the intent on the malicious. destroying plaintiffs’ business; only that defendants directed that officers; plaintiffs bottles filled with milk be taken willing exchange always ready with the been bottles any empty bottles, defendants or with one who has the usual ready willing business, and were and are to surrender course possession possession in their bottle in the bottle .the others, which a container defendants or bottle suitable for use as milk, retain the bottles re- but defendants assert exchange plaintiffs’ bottles forcibly ceived them unlawfully plaintiffs plaintiffs received in to take bottles which business; doing, exchange that, by so course of usual *10 plaintiffs carrying their trade and defendants therein hinder on engage compétitioii with thereby in unfair business and defendants ' plaintiffs. alleged injunctive that the petition It is further for relief said threatening (relators herein) to institute other defendants therein Dougher- the said J. J. suits similar to instituted them before those ty, justice changes venue to Louis peace, and transferred justice Mazueh, against plaintiffs petition J. in said peace, of the Harris) (respondents herein, than Honorable Brown other injure similarly plaintiffs others situated to harass and further restrained, will that, them in the conduct of business and unless so; joined suits, wrongfully plaintiffs as do in said defendants replevin wrongfully defendants in actions and caused officers justice township pretended in Kaw to serve writs peace courts replevin plaintiffs possession and to take bottles not in the replevin instituted; replevin at the time the that said suits wrongfully purpose suits are instituted for the maliciously injuring rights plaintiffs and in violation of their as citizens of prosecution the State of Missouri and institution and of such' judicial right- process; that, suits is an abuse of if said actions were fully instituted, rights only parties thereto could be settled involved; particular questions as to the bottles that the involved are general great people common interest to a number of rights situated; similarly affect plaintiffs others equity prevent multiplicity should intervene to of suits and the n ’ adequate law; plaintiffs complete therein have no at remedy engaged therein defendants are insolvent are not any legitimate business, lawful or but with the usual con- interfere milk City, duct of the business in Kansas and its surround- ing territory.
It is plaintiffs relief that the for exchanged therein had bottles with the defendants therein and exchange any person Offered to with defendants other bottle in possession possession for bottle in any other of the defend- upon equal ants person or other terms. prayer of. follows: is as
“WHEREFORE, plaintiffs pray these order re- straining prosecuting any the defendants and each from one them described, instituting the actions hereinabove and from taking purpose plaintiffs any suits or from actions possession bottles which come into their the usual and ordi- nary business, entering course conduct of the from wagons searching same, plaintiffs or trucks of the interfering plaintiffs other manner with the in the conduct of their business; taking belonging plaintiffs pour- the milk *11 n ing by plaintiffs, and it bottled in which has been the of it out bottles any in their taking plaintiffs. the bottles demanding or from from equal milk of other giving plaintiffs to the bottles possession capacity. value and hearing before this pray, upon a court further that
“Plaintiffs enjoining restraining and temporary injunction, any agents prosecuting of the suits from and their the defendants plaintiffs interfering the in mehtioned, and from with hereinabove entering upon trucks and their their business conduct of the instituting any suits of kind or searching same, or wagons and falling replevin plaintiffs’ posses- into for of bottles description the demanding business, and of frоm conduct the milk in usual sion the giving plaintiffs bottle without taking plaintiffs any from the or capacity milk of like and exchange some other bottle therefor in hereof that the a final determination defendants upon value and that enjoined gathering from and be forever restrained and each them taking them out the usual and milk and sequestering bottles demanding plaintiffs the trade from ordinary channels money defendants as a condition to they contribute searching entering upon exchange bottles, and from and. free interfering wagons from molest- plaintiffs, or trucks and any their Also in the-conduct business. manner plaintiffs of. herein- enjoining prosecuting from suits defendants forever purpose instituting other like suits for mentioned, above or dumping milk out the bottles harassing plaintiffs, and from usual received in the course plaintiffs by them filled conduct of the milk business. they have other and pray that “Plaintiffs further that the de- just, may equitable seem relief as to the court of this action.” adjudged pay costs fendants be duly for relief Such verified.. follows: by the court is entered thereon Equity Injunctive Re- Petition in for
“Upon reading plaintiffs’ in the above entitled cause duly and sworn to lief, verified under oath finds, sаtisfied, herein, and the court is court as filed of action for in- prayed to the relief the-said are entitled plaintiffs petition: by the court that the de- THEREFORE, it ORDERED “NOW, - action, them, each one of cause of the .above entitled fendants restrained.and;enjoined employees from agents, servants way pending now of re- action any of the causes of
prosecuting pending now Justice empty milk plevin Court bottles Township Raw peace within Mazuch, justice of the and. Louis J. any in, County; Missouri, other Jackson County,
in Jackson any instituting and from or causes of action suits taking purpose plaintiffs from the milk bottles which ordinary course in the possession have come into their the usual or plaintiffs’ business, conduct of the milk and the defendants each enjoined entering the de- one of' them are restrained and livery wagons plaintiffs searching same, or trucks interferring plaintiffs other manner with conduct taking belonging milk business, and from *12 plaintiffs pouring bottles, and milk the out of the which has been demanding plaintiffs,' taking bottled the from and from the plaintiffs any giving in possession plain- bottles without equal capacity, tiffs other milk of bottles value and and the defend- enjoined ants are gathеring sequester- restrained and and ‘ ing taking milk bottles and them out of the usual and ordinary trade, channels of demanding and from plaintiffs that the contribute money exchange to the defendants the condition of the mere bottles, entering upon wagons and from searching the trucks of the plaintiffs, interfering molesting plain- and from with and the tiffs in manner business, conduct of their milk the and from dumping pouring plain- out the out of bottles filled the tiffs, them received in the usual course of the conduct of the ’ plaintiffs milk business, until' the further order of the court. This injunction order to taire effect upon giving temporary, of a bond in the sum of according $500 conditioned law.
“DONE day July, 14th of this Judge.” Harris,
“Brown The return of respondents provisional writ issued herein substantially follows:
“I. “Now respondents all of comes in the above entitled cause relators, Exchange action and City admit Kansas Com- pany Independent Dairies, Inc., and the corporations are Missouri doing City, Missouri, business in Kansas respondent and that Honorable Brown Harris was is and at all times mentioned herein, Presiding Judge record Of the Circuit Court Jackson County, Judge City, at Kansas of Division 4 of the Cir- County, Missouri, cuit Court of City, Jackson at Kansas and' each party individual and each pаrtnership named as a caption hereof, engaged are' production and distribution Missouri; of milk in City, and about Kansas n <<n ‘ ‘ injunction petition That the restraining order en- joining alleged relators as in for pro- hibition petition, set out are in'said and that the —restrain- recited, notice, without formal but was issued issued upon respondents’ equity relief and upon oath of the respondents, the sworn giving injunction. forth in of:the a bond as set the record ' “III. governing of'the of milk laws State Missouri the use
“The having registered bottles bottles—sections 12440-12455 both included n Missouri, 1929, in the Revised Statutes of and in ordinances the: Missouri, prohibiting City, having use bottles V 867,' brand distributor, of another section Article Chapter City, Missouri, prohibiting of the ordinances of Kansas n having distributor, the use of bottles the brand: of another V Chapter' section Article 12 of the ordinances1 Kansas City, unconstitutional, attempt Missouri, are null and void, these-respondents deprive lawful'property-rights due ” n (cid:127) legislation. process law, special and said class laws pro It was further said return that relators in this ceeding violating for-prohibition'are Constitution of State Missouri, together with the Fourteenth Amendment to the'Constitution violating rights enjoy the United-States оf citizens-in the bottles; that,- by ment of their to contract-in the sale of milk *13 alleged: (all writs replevin virtue certain 'and writs of which suits void) they malice, willfully, alleged unlawfully, with have, are to be n respondents right or au wrongfully 'and taken the- milk doing thority have to the irreparable do and loss so só to caused respondents. alleged' that' both- said relators
It is further return the wholly organized purpose for the sole of unlawful insolvent and City, industry competition-and'destruction-of milk in Kansas the raw ‘ n n : vicinity. Missouri, and ' alléged of' the Tt the time issuance that,- is further- at of-the the're n regarding injunctive restraining order, the status- the situation dangerous ap- for the that notice the were so respondents serious was not n given; temporary required plication injunction for a to restraining within the sound discretion that order issued was the granted the court; serving at it the and that the of notice time carry to given opportunity and time would the relators further prop- of respondents’ warfare in the destruction out unlawful n ' erty. alleged provisional the issuance of the It is since there further destroy property to the writ, unlawfully have continued' relators the others; -relators do not- come court in respondеnts that into ;(cid:127) n or they clean hands that have no: claim this cause with respondents continually seizing and are produced milk these delivery destroying preventing the thereof the same and respective those to their customers. only
It not prohibition is there further is relators’ Judge remedy, they presented but that could have filed ’ the application an to set aside BROWN Habris court a motion for given thereby opportunity order and have been an right; and that each prompt hearing; have such still with duly suit served promptly relators was Sep- Judge Harris at the appear in summons to the court injunction. term, answer said 1934, thereof to tember petition the pray court to dismiss return, respondents In deny permanent and for and to writ prohibition of relators for might just proper. court seem orders as to the such further Opinion. respondents’ mo with case, are met we the threshold of this At of re- writ and the dismissal quashal provisional tion for the petition. lators’ is, effect, de- the motion relators that
It is contended juris- writ, going petition provisional and the murrer petition issue writ to entertain diction of the court filing same, have abandoned respondents, waived longer must fall no thereon but the return and can stand' stand upon motion. quash preliminary rule and
The motion labeled a motion thereof re- writ; petition for the but examination to dismiss original challenging go point of veals that it does not tO' the jurisdiction pre- or .to issue petition this court to entertain allega- sufficiency of liminary provisional nor to the rule writ It seeks provisional writ therefor. tions of or the quashal and the dismissal therefor- the writ com- motion,:that have failed to reason, the sole set out in making ply .the brief this with the rules of this .hear- ing. . *14 required specify of such character are to Demurrers and motions grounds [Wampler Atchison, upon the which are based. v. Ry. Topeka 464; & C. the Co., Santa Fe Mo. J. And 482.] ¡be (Same grounds only grounds specified-are the to so considered. authorities, supra.) regarded consideration be
The motion under must therefore as a relators, dismiss for the reason that motion to the lost eause hearing final for proceed.upon permanent the writ the- court; comply with- by reason of their failure to the .the -and it rules regarded going jurisdiction a motion as to the of the is to-be not allegations for,the of the petition. prо- to the or a court demurrer all upon which the motion is based arose visional writ. The matters jurisdiction by assumption this subsequently court. pf carefully in connection read the brief of relators with We have motion, complaint respondents in their we made thereof being complaints is made. This an fail to find that such well things, original proceeding court, in there is no this in the nature of assignment and, indeed, it is insisted errors; for not place any assignment of errors. that there have been The should case, by relators, a clear as made therein seems to he statement of law argument or reference to issues of concise statement without fully as to the case in the record and is sufficient to advise finally upon which be therein involved the cause must the issues respondents, other than petition The determined. merits respondent HARRIS, upon Honorable BROWN which the order for complained in this cause was relief in relators’ obtained, for this and it was proceeding; is not consideration in not, therefore, relators, making a necessary that statement pre- case, controversy or particulars have set of said should out a statement of the facts involved therein set out sented injunction. question in analysis, for In final this its not case is whether or Honorable HARRIS, BROWN judge County, and of of the Circuit Court Jackson 4 thereof, jurisdiction granting division exceeded his number judicial complained proceedings without of in notice acting relators herein whether or not for enforcement acting jurisdiction; his order he is excess of state- of said fully question together presents with all matters in the ment such necessary for record its determination. points is in numerical
Such statement followed statement rely order, upon which the relators issuance of the writ in for the point case, together with a citation authorities under each this points upon. upon The statement of relied followed relied is argument points brief each of said relators show under justification materiality points advancing of such for n speak points made for same. The are so as to themselves without interpretation. The motion explanation respondents’ grounds is therefore dismiss the case overruled. of, now disposed
With this motion thus the case stands con judgment upon pleadings— motion upon relators’ sideration being provisional writ pleadings petition, relators’ issued there respondents. under, return of the Revised and the [Section Statutes 1929.] judgment regarded pleadings action for on the
Relators’ permanent writ, notwithstanding motion for the as a issuance *15 COCO ,of all the truth of respondents, admits return and therefore allegations sufficiently pleaded.
of of return where [State 165, 263 W. Wagner 155, l. S. al., App. v. 218 Mo. c. ex rel. Fields et 503; 666, 16 W. 853; Smith, 661, 104 S. State ex rel. Clark v. Mo. 894; 349, 362, 61 S. W. Adams, v. 161 State rel. Wheeler Mo. ex 531, 534; ex rel. Gumperts Higgins, App. v. 84 State State ex rel. Mo. McQuillin, 162 171 256, Warde v. Mo. S. W. 72.] good- However, answer; and, under rules return obliged deny pleading, respondents either to or to confess are every allegation petition- material in the writ and relators’ avoid Gas-Light 55, 11 c. Louis, App. v. St. Mo. l. therefor. Louis Co. [St. 847, 285 W. 61; Porterfield, 221.Mo. S. App. State ex rel. Frank v. pleadings, every And, upon judgment upon the al a motion for 786.] legation petition which is the return con of relators’ not denied purposes be as for the fessed and avoided therein is to taken true motion. such
How then stands the record? An examination of the return- allegations respondents shows that therein admitted as true certain admissions, petition and, making relators’ after such withоut allegations denial of the other or a confession thereof, proceeded up which, avoidance to set certain defenses generally they inclusive, 12449 speaking, Re attack sections governing Statutes laws of Missouri use of milk vised bottles, City prohibiting and the ordinances Kansas the use of having bottles the brand of other distributors others than the- thereof, especially Chapter owners section Article null, ordinances, unconstitutional, void and as at deprive respondents property rights tempt of their lawful without being legislation. special Respondents law class process due up prohibition therein relators, proceedings set virtue herein, violating the Constitution of the State Missouri and the Fourteenth Amendment Constitution of the United States give right contract; here, through that the relators cer alleged replevin (which tain suits and writs thereunder writs are al leged void) have, malice, unlawfully, wilfully, with wrong fully (other taken the of each of the respondents than the re spondent authority the Honorable Harris) irreparable caused thereby respondents so to do and have loss to continuing do; so- both said relators are wholly organized solely purpose insolvent and are for of unlaw competition industry ful and for the destruction of raw milk Missouri; City, at the time of the issuance of the in- junctive restraining order, the situation and the status of seriously endangered as require any not to were so notice of ap- *16 restraining temporary injunction or order and the plication for the court; within sound discretion of the that of such was the issuance given notice at the would have the further to have served time relators carry competitive on and opportunity to their unlawful warfare de- respondents. of of the property struction generally charged relators,
The return that since the of issuance injunctive against continuing were with them, writ the unlawful with viola- property of of the and acts in destruction order; of tion that the relators claim to re- have no continually same, destroying spondents’ seizing milk are but same, preventing delivering and respondents from to respective customers; relators come into that do not hands; proceeding with prohibition this clean that writ of is not only remedy; pre- relators’ of them and each could filed Judge application sented to an to аside the re- set Brown Harris straining give opportunity promptly order to and them to heard right; and relators still have such that the relators have each been respondent with summons in the served suit before required Honorable Brown Harris and appear to in his court term, September injunction. at the to answer said prayed deny It the court to dismiss relators’ and to just might and writ for such further orders as to the court seem proper. and among things,
The relators in their petition, allege other in sub- respondent stance that the the Honorable Brown HaRris is and was elected, acting all times duly qualified, at mentioned the judge presiding County, Missouri, of Court of Jackson Circuit thereof; respondents, of division number than other respondent the Honorable filed Brown Harris, County the Circuit Court Jackson in cause Number sought restraining from, among things, relief relators other replevin pending justice prosecuting certain suits court and from instituting proceedings recovery other for the of bottles and from entering upon belonging taking trucks them and from or demand- bottles; that the said Honorable Harris, having assigned assignment judge cause as said the said Circuit County court, 4 of Court Jackson division number judge, any fоrthwith, he was without notice to relators knowledge nature whatsoever and relators and with- testimony solely hearing allegations out restraining petition, an order in said cause enjoining entered prosecuting pending replevin from relators suits in- stituting of that proceedings per- character and from the specified acts, all particularly appear formance of certain set copy out in a B” marked “Exhibit part attached to and made petition; the acts of the re- spondent issuing the Honorable Brown HaRbis said order so re- straining judicial relators from prosecution proceedings threatening acts thereunder en- without notice force power, jurisdiction, said order and were in his excess of authority as judge court, in that such acts were of said and are prohibited ;by provisions 1502 of the Revised section Statutes 1929; that both relators are residents the State of not, concealing Missouri and were filed, at the time the suit was them- *17 avoiding’ process; selves or existing justifying that is- no facts suance' hearing, impera- of said order without prior notice and necessity, alleged respondents’ injunc- tive were in petition for such damage tive relief and no irreparable could or have resulted would respondents if given required by notice had been to relators as law.
It is alleged petition further in relators’ that the value of the by of order and its enforcement was businesses relators affected effective, vastly adequate, each; $1000 of had relators no excess remedy against at law or otherwise said order and its or efficient by-its prohibition; enforcement, unless court intervened writ of this organized the laws the State of Mis- under of and that relators were City, at Kansas principal places of business where their souri with clearing engaged, among things, acting other houses both were by exchange of distributors milk bottles used various for the delivering milk their in and customers producer-distributors City, Missouri, provide whereby a method order to about Kansas State, with the might laws of comply distributors all of said 1929, prohibiting inclusive, Revised Statutes 12449-12455 sections having registered by brands others than the milk bottles the use of City, Missouri, par- thereof, 56134 of and Ordinance owners 12 thereof, and in Chapter 5 order Article of ticularly section rights property might respect that each distributor bearing various brands marks. It their in the bottles distributors alleges Honorable Harris was that the threatening in force was maintaining said doing so prohibited from do so unless and would to enforce the same by the writ this court. by petition alleged in their facts relators that the appears
It thus herein upon relators’ motion facts as the are to be taken true state a cause sufficient to alleged if facts therein are such be had thereon for sought, judgment should re- the writ action for matter law writ, as a some new precluded unless lators for alleged new The matter in the return. matter in avoidance disposed be of. will first in the return
741 contention, by 12449 respondents that sections 12455 in Missouri, clusive, Statutes Revised laws Article City, 5, Chapter par 12 of the ordinances of Kansas ticularly thereof, ques section are unconstitutional and void is a question tion which we are not determine. here called Such therein, injunction proceeding pending the circuit court in the jurisdiction. Hall, if ex v. Mo. it otherwise has rel. Chase [State 594, l. 250 S. c. W. 64.] by respondents
It it is relators is contended admitted organized pur corporations that relators are insolvent sole aiding destroy competitive pose of scheme to business City, in Kansas for the have not an al reason denied legation however, respondents’ appears, effect in It to such return. showing petition charge solvency that relators in their facts engaged showing legiti also that the in which business respondents’ contrary, charge mate business. The return to the good pleading, is not to be as a denial under the rules considered allegation nor or an avoidance relators’ a confession Adams, thereof. rel. v. State rel. Frank supra; ex Wheeler ex [State Porterfield, allegations solvency v. supra.] The therefore re- legitimacy lators in their and of the businesses are insolvency charges unfair not avoided business up by respondents methods set in their return.
Likewise, charge proceedings that, the in return the here the violating prohibition, for the relators the Constitution of the State and the Amendment the Constitution of Missouri Fourteenth rights voiding liberty in citizens of to the United States the in sale of a contract bottles is not matter to de here, injunction pro termined us but the court in jurisdiction. ceeding if it pending, has is otherwise Likewise, charge return that the relators have unlaw (other respondents respondent milk from than the fully taken authority and are con Honorable Habéis) Beown tinuing in certain replevin void issued do so under writs to proceeding. a consideration this is not matter our replevin suits proceeding only is concerned this matter with which this court The in ex respondent acted the Honorable is whether the HaReis BROWN threatening to so authority he is continue whether cess of his trying injunctive complained We are not of. to do order upon its merits. suit that in their return the relators It contended application the Honorable made should have Beown to suing a writ of restraining before out order set aside to Habéis words, contend In prohibition proceeding. in this 742 no
where
temporary
motion to dissolve
in
order
junction is made, prohibition
However,
will not lie. Such is the rule.
exception
an
recognized
to such rule is
where the lack or
instances
jurisdiction
excess
is apparent upon the
of the record.
face
[State
ex rel.
296
Huck,
374,
382-3,
303,
Brncic v.
l. c.
246
l. c.
Mo.
S. W.
305;
Baryta
Dearing,
State ex rel. American
&
v.
184 Mo.
Lead
Co.
647, l.
665,
21,
26;
Young
Oliver,
c.
84
v.
S. W.
l.
State ex rel.
c.
In State ex American rel. Lead & Co. v. court said: judge application
“But it is said that no
to
to vacate
made
receiver,
the order
rule
appointing
preliminary
and therefore the
clearly
discharged:
jurisdiction
in this case
should,be
The excess
appears upon
record,
necessity,
was no
the face
there
therefore,
suggest
applying
that fact
the trial
court before
Oliver,
rel.
163
c.
prohibition
from this court.
ex
v.
Mo. l.
[State
696,
128;
Hirzel,
435,
921,
37
S. W.
State ex
v.
S. W.
rel.
Mo.
”
As in v. Dear the case of State ex rel. American & Co. Lead ing, supra, jurisdiction apparent case is the defect instant prior fails to the face of the record in that it show notice injunction. granting temporary Dearing, Baryta supra, ex American & Co. et al. v. State rel. Lead proceeding appointing prohibit was a enforcement of hearing receiver, ground had notice or there been no on the making Supreme prior to of the order. Missouri Court notice, and said that out that record failed to show there- pointed appears face jurisdiction clearly upon the “the excess of fore ’’ record. Dearing, 169, Mo. l. c. It ex rel. Caron v. was said State granting injunctions 629, 236 S. l. c. “the W. analogous "proceedings.” appointment of receivеrs are before Respondents suit the re contend *19 stay judicial Honorable Brown HaRris not a suit spondent the injunction, However, respondents, in their proceedings. J. Mazuch, Louis pending which before were then described four suits County, and asked relators be justice peace of Jackson instituting suits from such or prosecuting restrained from restraining character. The order of a similar suits prosecuting restrained upon complained of, petition,-specifically made before pending Louis J. prosecuting the suits described from
743' instituting justice aforesaid, from other suits Mazueh, or peace of the a similar character. (cid:127)of restraining order re
Respondents again that contend However, an only examina prosecution of unlawful suits. strained was no contention. There not bear out such tion of the order does any and all suits. qualification such It restrained said order. being again they deprived
Respondents contend a mere statement any hope This is recompense. without bottles any upon facts conclusion, unaccompanied (cid:127)of a a statement is therefore not any might conclusion founded and such be cоnsideration good further, a matter for our pleading; and, it is not herein, even if true. relators subse
Respondents complain of acts of the Judge restraining 'respondent order quent to the issuance of committing in viola- alleging acts that relators were Harris, Brown with clean come into court and hence do not lation of such order how af However, true, it is not seen if such facts be hands. herein, upon the right prohibition based the writ of fect relators’ petition at the time it was in their facts and contentions filed. right claim relators have no
Respondents aver further that being them and is seized respondents milk which was respondents these right destroy prevent or to nor the same respective In other delivering customers. from to their do. try which we cannot words, suit we are asked to jurisdiction. only question There with of excess "Weare concerned allega by which nothing in of the averments of the return is (cid:127) avoided. relators’ are defeated or tions of analysis of the examination and appears It thus re whether or not involved is pleadings herein that the sole issue judge the Circuit Court the Honorable spondent Brown Harris jurisdiction his in excess of County, acted of Jackson issuing in- jurisdiction of the circuit in excess of any notice hav without junctive complained That therefor. he application given the relators of the did been charged petition and in relators’ notice is such order without make by respondents in their return. expressly admitted question relate to the issues here say that the sole their brief had Judge required and whether notice was whether .Harris facts, admitted to issue discretion, right his to exercise respondents, giving bond restraining order, upon However, for such order. application to relators prior notice whether notice was any open question as to seen that there it is not question of re- how it seen required; can nor *20 744 Judge making spondent to act his discretion in Brown Haebis having given case,
such been enters into-'the order without notice question involved, questions only as we one of the involved. The it,, had see is whether the Honorable Harris having jurisdiction been whatever to make an order without notice given to relators. equity have in
It is contended courts jurisdiction injunctions in all herent to issue orders application dispense cases and in their discretion tо with notice of therefor, though statute, if, in their required even be notice opinion, giving purposes of such notice would defeat action.
However, regard such to a true statement of the rule. we do not be perhaps that, It is in all other than those in which true cases judicial sought stay it is within proceedings, it is the sound dis require accordingly with dispense cretion the court to or notice may or, required as it notice be consider that such should reason peculiar existing him, dispensed facts and shown should be with. 254 Woodside, 580, ex rel. McMillan v. Mo. l. c. 591 592, [State fact, which, S. W. are numerous authorities in There 845.] all prosecution dicate cases other than to restrain the those judicial'proceedings stay them, or to the rule is that notice of the application given judge therefor should be unless the court or the issuing injunction shall, thereof discretion, exercise of peculiar surrounding giving find from facts that the the case of such notice- would It purposes defeat the action. has never been held, however, attention, that, far as so called to our cases where the provides injunction may law an statutory stay before issue to any proceedings applicant give shall reasonable notice thereof writing parties, can, to the adverse such notice in the discretion of the judge thereof, dispensed court or with. It is not indicated sections may, Revised Statutes but to contrary. clear, eases, might It is in such prevail equity whatever rule equitable power might general whatever proposi- the court have as proceedings injunction, tion in requir- in the absence of a statute ing notice, longer such rule nor does such in- power does not obtain judge grant here in a court or the thereof to notice where a statute remains in provid- has been enacted and force given that notice must be first. Woodside, supra,
In case of ex rel. McMillan v. State proceeding prohibition, Supreme was a Court of through Judge Bond, said: provides this that before the issuance of an
"The statute of State *21 injunction -writing’ stay ‘any proceedings’ ‘reasonable notice-in by given agent applicant party the shall or his be adverse by in putting up this State if is such State, neither within the days notice for circuit court ten in officeof clerk of the where the the ” 1909, 2517, suit the is filed. S. secs. [R. 2518.] The same two as 1502 and 1503 in the Revision appear sections 1929, restraining granted was force at the time the order in this case. 1502, pleaded upon by
The relied specially statute section petition herein, is follows: as granted any injunction stay proceedings, “Before shall the be applicant give writing party shall to the adverse notice reasonable attorney if agent any if within he has the State or to his known in the State.” jurisdiction the to issue
Such thus cuts out the statute -restraining required by first such a order notice its terms without the place having given relators; left for been is no the exercise and there jurisdiction by is limited judge. His discretion in the matter by making grant- statute; act in the and determined clearly jurisdiction, limited of such an is in excess of his order by the statute. giving Statutes courts
Likewise, section Revised temporary orders judges issue thereof may hearing had, expressly be ex may given until notice be first instance cepts wherein notice operation all cases its from given. required by be injunction statute to application (cid:127)of order, of such looking Likewise, any act enforcement jurisdiction of clearly in having made, is excess after its been fully appears instant case jurisdiction in the court. Lack of from the record the absence proceeding and the character of the by given, required the stat was any showing notice thereof that Dearing, Baryta supra.] Co. v. ex rel. American Lead ute. & [State required was in which no notice case if this had been a Even injunction stated no respondents petition for statute, in their dispensing with the notice jristify court in grounds whatever to of facts in the absence by general equitable principles required with, dispensed and notice might be exercised discretion which its conceal or were about to concealed the relators had as that such from the to remove process or service of to avoid the so as themselves application purposes act or do some State respondents averred defeated. would be for the writ issuance “at time of herein, return Judge the situation Brown- HARRIS dangerous as serious were so regarding these status require any not to application temporary injunc- notice” of tion restraining order, therefore such notice, court; within sound discretion of the the service of such given notice opportunity would havе relators further for their un- competitive warfare, lawful etc. through
The facts are not set out which or reason which rendered, status was so general other than the facts for the injunctive relief, from appear which it does not that relators could have committed having more of the complained acts of after been than notified could without only so, but, such notice. Not if respondents’ might case was one which such rule applied, place allegations where respect with menacing to such condition dispensing and the reasons for with notice should *22 injunction. been made was in comes, for It at events, all too late in return in proceeding. this all that, Besides place injunction there is no plea such a in a case where an is sought stay judicial proceedings in the face aof statute which for- bids its issuance without notice.
Whether the upon relators’ the facts therein— are, which facts we under the pleadings record, state of the in the re quired to consider as sufficiently the true facts in the states cause— sought cause of action for the relief and for the issuance of the permanent question writ is the follows, determinative of this case. It from what herein, has been said that it does.
It judgment follows that relators’ motion for plead ings is well made and should be and per is sustained and that the manent prayed prohibiting writ relators, should be ordered as Judge the Honorable Brown Harris as Circuit Court of Jackson County from'maintaining and of division thereof in force proceeding and effect and with the enforcement of re straining or complained petition. order inof relators’ It accordingly is permanent prohibition ordered that a writ of be issued permanently prohibiting presiding the Honorable Harris judge of the Circuit County, Missouri, Court of Jackson and as judge of division number from in exercising thereof manner attempting jurisdiction to exercise a to maintain in force and effect the July 14, him order entered on 1934, judge County Circuit Court of Jackson and of division against 4 thereof pending relators herein cause him before court, said Johnson.doing numbered wherein O. one W. busi Maple ness as Dairy, doing Maple Leaf W. S. Davis business as Lawn n Dairy, R. doing Dairy H. Keltner business as South Side and others plaintiffs were City Exchange and these relators Kansas Company, a corporation, Independent Dairies, Inc., corporation, n doing defendants, whereby he restrained of certain relators from the out, permanently and that he in said order described and set acts taking any'further proceed- prohibited steps or restrained and proceedings ings touching the in which premises C., Campbell, was made. concurs. foregoing opinion C., is CURIAM: The Reynolds,
PER judgment adopted court. The motion for on opinion as the permanent writ pleadings prohibiting sustained injunc- and effect the enforcement of the maintenance force All complained tion of is ordered. concur. Ray Relator, G. rel. S. Moritz, ex v. Hon.
State of Missouri Respondent. (2d) 349. 81 S. W. Cowan, etc., Judge, Appeals. City April Court of 1935. *23 Seelig Seelig for Pauline relator. and. L.ee respondent.
No brief brought TRIMBLE, original proceeding J. An mandamus Judge against Ray Moritz, Relator, Cowan, Hon. G. Division S. County, Missouri, wherein Relator of Jackson
of the Circuit Court '9',1934, Judge his of October compel set aside seeks allowing Roger one set the order overruling Moritz’s motion to aside Supreme to refrain “from "Woodman, Court, appeal H. regarding other than those making in said cause any further orders receivership.” conduct of said multitudinous, portion many, if not stating After at least mandamus, application for the it sought writ objects