180 Mo. 53 | Mo. | 1904
This is a proceeding in prohibition instituted in this court in which the questions to be determined are raised by demurrer to the returns of the respondents.
The facts admitted by the pleadings, material to the present inquiry, are in substance as follows:
In a suit in equity brought by the relator company in the St. Louis City Circuit Court on the 26th of March, 1902, against William Crommer, William F. Crommer, E. P. Ewart, S. C. Newhouse and S. J. Malugan, in which the relator company sought a discovery of, an accounting for, and the recovery of the value of certain shares of relator’s capital stock and other valuable property which it was alleged the said Ewart and Newhouse had received by means of a fraudulent conspiracy by them entered into with the said Crommers, whereby in the promotion of the organization of said company, a lumber plant, consisting of 7,500 acres of land situate in the counties of Carter, Wayne and Butler, and other property appurtenant to and connected therewith, contracted for by said promoters for the sum of $21,000, was fraudulently sold by the said Crommers to the relator company for the sum of $37,250, the relator in its petition, in which the fraudulent acts complained of are set out in detail and at great length, in substance prayed for a personal judgment against the said William Crommers, Williams F. Crommers, E. P. Ewart and S. C. Newhouse for the value of the property alleged to have been so fraudulently obtained, for damages for fraudulent misrepresentations as to the quality and value of said lumber plant and further prayed “that six notes of one thousand dollars each” secured by a deed of trust on said lands given by the relator in part payment of the purchase money for said property and held by the
Afterwards the defendants in due time filed answer to plaintiff’s petition, the answers of Ewart, Newhouse and Malugan being in the nature of a general denial and the answer of the Crommers putting in issue the allegations of the petition and containing a cross-bill in which they asked for judgment upon said notes and the foreclosure of said deed of trust. Upon these answers issue was duly joined by reply.
“Afterwards said cause coming on for trial upon the issues joined before Honorable James R. Kinealy, Judge of Division Number Ten of the Circuit Court , of the City of St. Louis, and on the 23rd day of June, 1903, the said judge of said court, after hearing the evidence in said cause, found the issues in favor of the defendants and made an order dismissing plaintiff’s bill, and
Said order and judgment of said court was in words and figures as follows, to-wit: .
“ ‘Now at this day this cause coming on for hearing come the parties herein by their respective attorneys and submit this cause to the court upon the pleadings and evidence adduced, and the court, having heard and duly considered the same, doth order and adjudge that the temporary injunction granted in this cause on March 26, 1902,. be and the same is hereby dissolved in every particular. And the court doth find the issues joined in the plaintiff’s petition herein in favor of defendants. It is thereupon considered and adjudged by the court that the plaintiff take nothing by its suit in this behalf, and that defendants go hence without day and recover of plaintiff and the American Surety Company of New York, surety on that injunction bond, their costs and charges herein expended, and that execution shall issue therefor. And the court doth further find the issues joined in the cross-bill of defendants William Crommer and William F. Crommer in favor of the plaintiff. It is therefore considered and adjudged by the court that the defendants, William Crommer and William F. Crommer, take nothing by their suit on the cross-bill herein, because of want of jurisdiction in this court over the subject-matter thereof.’
“On the day following, June 24, 1903, the said Crommers brought suit in the circuit court of Wayne county against the South Missouri Pine Lumber Company upon the said six notes held by them against the company, in which they sought to recover judgment for the amount of said notes, and in the petition they also prayed for a decree foreclosing their deed of trust, and asked that a receiver be appointed for the company,alleging insolvency, mismanagement and other grounds as a reason for the appointment of a receiver.
“On the day following, June 25, 1903, the attention
“On July 11th, the .motion for new trial in the St. Louis case was taken up and argued and submitted to Judge Kinealy and was by him overruled, whereupon the South Missouri Pine Lumber Company filed its motion, in which it asked that the court modify its decree to the extent of continuing in force the injunction against the Crommers pending the appeal to the Supreme Court, alleging that the Crommers were insolvent, and unless the injunction was so continued would proceed at once to force the collection of their notes and would succeed in doing so before the case could be determined by the Supreme Court. This motion was heard and considered by the court, all of the parties were represented, and the Crommers were present in person and by counsel. The motion was sustained, and the court as its final judgment continued in full force and effect the injunction which had been issued at the bringing of the suit until the case should be decided by the Supreme Court upon condition that the plaintiff, the South Missouri Pine Lumber Company, give a bond to the defendants Crommers in addition to the statutory appeal bond in the sum of fourteen thousand dollars, conditioned for the payment of said notes and interest in full in case said judgment should be affirmed in whole or in part. On the same day plaintiff complied with said order by filing its bond in the sum of fourteen thousand dollars, conditioned as required by said judgment with
“After the modification of said decree, plaintiff filed its affidavit for appeal. On said 11th day of July the appeal was allowed, and an appeal bond fixed at one thousand dollars, which was filed and approved on the same day, with the same surety, and time was given plaintiff in which to file its bill of exceptions.
“The defendants Orommers opposed the modification of said judgment, and contended, as they now contend, that the circuit court had no power, jurisdiction or right after finding the issues in favor of the defendants upon the merits of the case, to continue the injunction in force pending appeal, and that the bond of fourteen thousand dollars, executed in pursuance to said order, was illegal and void because of the fact as contended, that the court was without jurisdiction to make such order.
“On the 13th day of August, 1903, the Orommers appeared before the Honorable Frank R. Dearing, Judge of the Wayne Circuit Court, one of the respondents herein, in the said action brought by them on the 24th day of J une, 1903, and obtained an order from said judge in said case, appointing W. L. Matthews, one of the respondents herein, receiver of the South Missouri Pine Lumber Company, over the objection of said"company, and the said Matthews at once took charge of all of the assets and property of said company as receiver, notwithstanding the said company was possessed at the time of a large amount of real and personal property which was not covered in said deed of trust.
“Afterwards, on the 17th day of August, 1903, the South Missouri Pine Lumber Company filed in said Wayne County Circuit Court its motion to vacate said order appointing a receiver, and in said motion set out the proceedings and orders had and made in the circuit court of the city of St. Louis, which said proceedings and orders were pleaded as a bar to the right of said
“Afterwards, on the 31st day of August, the said Crommers filed their suggestions in opposition to the motion to vacate, in which they admitted the making of the order and judgment continuing the injunction in force by the St. Louis court, and the giving of the bond for fourteen thousand dollars thereunder, but pleaded that said St. Louis court was without power or jurisdiction to make such order.
“The issues thus joined were heard in chambers by Judge Dearing on August 31, 1903, competent evidence was introduced to prove the orders and proceedings had and made by the St. Louis court, and after hearing the evidence adduced, Judge Dearing, on the 1st' day of September, 1903, overruled said motion to vacate the order appointing a receiver, to which action the South Missouri Pine Lumber Company at the time excepted.
“Whereupon the company filed its affidavit for appeal and requested Judge Dearing to fix the amount of the appeal bond and to make an order upon the receiver to restore to the company all of its property in his hands upon the filing and approval of said appeal bond.
“Judge Dearing thereupon fixed the amount of the appeal bond at one thousand dollars, but refused to make the order, as requested, upon the receiver to restore the company its property. On September 3,1903, the South Missouri Pine Lumber Company filed its appeal bond in said Wayne County Circuit Court in the sum of one thousand dollars, conditioned as required by law and said bond was on said date approved.
“On the 8th day of September, 1903, this petition was filed in this court praying for the remedy by prohibition, a provisional rule was issued by the Honorable W. C. Marshall restraining the defendants as prayed in the bill and commanding that the receiver restore to the
Counsel for respondents contend that the prelim-nary rule should be discharged and a peremptory writ denied on two grounds:
First, because the relator’s action in the St. Louis. City Circuit Court is one “whereby the title to real estate” in the counties of Carter, Wayne and Butler, may be affected” within the meaning of section 564, Revised Statutes 1899, and no part of said real estate being-within the city of St. Louis, said court was without, jurisdiction to hear and determine the cause.
Second, because said court had no power to modify its judgment and continue the temporary injunction in force until the case should be decided by the Supreme-Court on the appeal therefrom.
(1) In this proceeding we have nothing to do with the merits of the two actions now pending in this court, on appeal. Any errors that may have been committed therein will be corrected in due course on the hearing of those appeals. Hence, everything in the briefs of' counsel bearing thereupon may be pretermitted, and in. the statement of the proceedings therein, only so much has been stated as is necessary to present the questions-to be determined on the present inquiry, which is necessarily limited to the jurisdiction of the St. Louis Circuit Court in the aforesaid action of the relator against the respondents therein named.
As to the respondent’s first contention, it is only necessary to say that while the subject-matter of the controversy in that suit grew out of the alleged transactions between the parties in the sale and transfer of the lands in Carter, Wayne and Butler counties, the title to* these lands was in no way involved in the controversy. It was purely and simply a suit in equity operating in personam upon the defendants. That the court had jurisdiction of the persons of the defendants and of the subject-matter of the controversy between them is mani
(2) The precise question presented by that contention is: Has a, circuit court in this State in a suit in equity, in which a temporary injunction has been granted, in its final judgment in favor of the defendant on the merits, dissolving the injunction and dismissing the plaintiff’s bill, the power to continue the temporary injunction in force pending the appeal taken from that judgment? By the Constitution and laws of this State, circuit courts are invested with general original jurisdiction of suits in equity, subject to the right of appeal to the Supreme Court, or the Courts of Appeals, as the case may be, and in such cases are invested with all the powers inherent in an English court of chancery, except so far as those powers may have been limited by statute. As incident to their jurisdiction, the English chancery courts have power in a proper case to grant an interlocutory injunction to restrain a mischief eom•.plained of, arid preserve matters in statu quo until the final determination of the issues therein.
In Kerr on Injunctions (3 Ed.), pp. 29 and 30, the learned author in speaking of the proceeding in English chancery courts says: “Where an action has been altogether dismissed by a Divisional Court, the Court of Appeals will in a proper case grant an injunction to restrain any of the parties from parting with the property till the hearing of the appeal. If an appeal is dismissed by the court, the jurisdiction of the court is gone, and no order can be made to bind the parties pending an appeal to the House of Lords. Where a plaintiff whose hill is about to be dismissed intends to appeal to the
And thus in England this salutary power is preserved and may be exercised in an equity suit from the inception to the final determination of the cause in the court of last resort. [Huguenin v. Baseley, 15 Ves. 179; Willan v. Willan, 16 Ves. 216; Monkhouse v. Corporation of Bedford, 17 Ves. 380; Way v. Foy, 18 Ves. 452; Lewes v. Morgan, 5 Price 468; Polini v. Cray, 12 L. R. Chan. 438.]
It was aptly said by Jessel, M. R., in the last case: “It appears to me on principle that the court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party is to reap the fruit of that litigation and not obtain merely a barren success. That principle, as it appears to me, applies as much to the court of the first instance before the first trial, .and to the Court of Appeals before the second trial, as to the court of last instance before the hearing of the final appeal. ’ ’
So in this country, the jurisdiction of courts of equity of the first instance to make all proper orders for the preservation of the subject-matter of the controversy in statu quo until the final determination thereof in the court of last resort has been uniformly maintained by the highest authority. [Messonnier v. Kauman, 3 John. Ch. 65; Hart v. Mayor of Albany, 3 Paige
In Messonnier v. Kauman, supra, Chancellor Kent, after reviewing the English cases, said: “There is no doubt, therefore, that the effect of such a motion as the present one would be matter of course in the English chancery, before the appeal would be allowed as a supersedeas. I see no reason, nor any objection, against the possession and exercise of equal power in this court. In Green v. Winter (1 Johns. Ch. 77) the question was discussed and considered; and I concluded that it rested in the discretion of this court to determine when, and how far, a party might have liberty to proceed, notwithstanding an appeal. The same1 point was raised, and the same conclusion drawn, in Bradwell v. Weeks (1 Johns. Ch. 325).”
In Hart v. Mayor, supra, it was held that, “Where an appeal from an order dissolving an injunction involved an important question of right between the parties, and there was probable cause for appealing, and no particular injury could arise to the respondent from the delay, the court, after hearing both parties, granted a temporary injunction, restraining the further proceedings of the defendants in relation to the subject-matter of the first injunction, until the appellants had a reasonable time to be heard before the appellate court.”
In Doughty v. Railroad, supra, the Court of Appeals of New Jersey, approving Hart v. Mayor, supra, said, per Green, C. J.: “It is a power which, in all cases where the merits are thus necessarily involved, had better be left to the discretion of the chancellor. He may properly exercise it, and with much more safety than this court are likely to do. He is familiar with-the case, and may, without the necessity of a further argument, if he thinks the case demands it, grant a temporary injunction until the'cause can be heard in this court”
In Hovey v. McDonald, supra, the Supreme Court
The present case is the first one that has come before this court in which the question of the existence of this power has ever been raised, and in the light of the authorities cited, to which many others might be added, we have no hesitation in holding, in conformity to the rulings of the highest authorities in England and America on the subject, that the St. Louis City Circuit Court, in the exercise of its jurisdiction as a court of equity, had full power, in its final judgment or decree in the case stated, to continue in force the interlocutory injunction granted at the beginning of the cause pending the appeal therefrom to the Supreme Court. The exercise of that power is conformable with the practice of courts of equity, and there is nothing- in our statute inhibiting it. On the contrary, its exercise is in harmony with the spirit of the statute which provides a remedy by injunction, “to prevent the doing of any legal wrong whatever, whenever an adequate remedy can not be afforded by an action'for damages” (R. S. 1899, sec. 3649); for a temporary injunction “during the litiga
It follows from what has been said that the demurrers to the returns should be sustained, the preliminary rule be made absolute, and a peremptory writ of prohibition issue as prayed for. It is accordingly so ordered.
