*1 Comm., Detroit-Chicago Bus Co. rel. Motor v. Public State ex Service (2d) 23 W. 324 Mo. S. 115.] burden of appellant has not Our conclusion sustained showing Commission unlaw- the order is-unreasonable-or ful. Ferguson Sturgis, GG., concur.
The is affirmed. Hyde, C., adopted foregoing PER is- opinion CURIAM: The Frank, J., P. Hays, Gcmttj J., opinion J., as the the court. Atwood, concur; J., concurs in result. Exchange
C. D. Appellant, v. Farmers Thompson, Bank, Trenton Bank, National Com Bank, Trenton Trust Citizens State Louis, Brimson, of St. pany, International Bank Bank Hardware St. Bank, Joseph, Drovers & Trenton Merchants Company Guy (all being corporations), of the above defendants McVay, Nancy Martin, D. P. C. Thompson, Fulkerson, Walter seph W. C. Barr A. G. S. O. J. Neff, Garvin, Jo (2d) Trustee. 62 S. W. 803. Knight, One, August 3, 1933. Division *2 n Gossett, Thompson Ellis, Tyler ap- & V. Dietrich and Milton pellant. *4 Seddon, Stinson, R. E. M. Harber Henry M. Paul L. Alfred Ryla-nd, Mag respondents; Stinson, Thompson, Sebree,
Jost & Jost Sebree, Carter, Turney Jones, Jones cO William T. of counsel. <& *7 n FERGUSON, action for damages C.- This is an false (cid:127) imprisonment; The- County Circuit Court -of Jackson sustained joint dismiss by motion to the amended filed all the defend- except--the First Bank ants National and J. C. Barr and sustained separate.demurrers by defendants, filed The First National Bank Barr. The elected to stand upon his petition'and amended from the of the circuit there- upon entered,-dismissing petition plaintiff appeals.' The amount gives damages prayed jurisdiction us the appeal. by As us shown record before the events out which this ac- (cid:127) beginning their tion arises had 1921. In September, 1921, plaintiff, Thompson,,pursuant arrangement an with the defendants (other than J. herein defendants O. Barr A. G. Knight) who large amounts, were his unsecured creditors in consideration by them of further advancement sums of money, conveyed approximately 18,000 warranty deeds acres land situate Livingston Grundy, Counties, Missouri, -and Harrison and some in Knight. State of to- defendant Contemporaneously Colorado .there- written with executed a Thompson declaration of trust wherein Knight was given named as in relation powers trustee certain conveyed management to the warranty by'the sale the lands deeds for purpose paying thé Thompson’s indebtedness to creditors who Subsequently are now a con made defendants herein. troversy arose as to power the extent of the to make sales trustee’s right possession The the land under the trust instrument. interested equity creditors filed a bill in the.court con “praying strue and trustee, Knight, enforce the trust” Thompson wherein were named as having any pleading defendants and without filed they “appeared in court and consented that decree be entered.” Thereupon the Knight court entered its decree as trustee had ‘‘ complete full and power authority convey all the real sell and estate,” defining made, in which fix manner such sales should be ing possession a date which the of all such real be de estate should livered Thompson Knight any purchasers part thereof directing -proceeds sales, how the derived the trustee from profits rents and should administered and distributed. Pursuant *8 Knight thereto the land, trustee sold certain tracts stituate in the report Grundy County, Grundy to the Company, Land and made exceptions. thereof to report the. court to which On Thompson filed 21, 1923,. March approved “the court as and confirmed the sale made” appearing and “it Thompson further that” “had never' sur any possession conveyed rendered by him of the lands to the by trustee” as theretofore ordered and and “was decreed the court refusing again to do so” it was possession ordered that he deliver Grundy possession the Company lands sold to the Land Knight, lands not sold to trustee. and the From the County Thompson orders Grundy of the Circuit Court of so made bond, July 1925, appealed, 30, supersedeas without and on' at during April Term, 1925. of this court and orders the. Exchange things of the circuit were court affirmed. all [Farmers 669, Thompson, Bank v. 309 Mo. S. W. 745.] 274 April. Knight 1924, appears It that on 12, contempt instituted a County proceeding Grundy by filing in the Circuit Court therein an charging information fully “representation” Thompson “wil- had contemptuously failed and refused and of the court had failed . . - and refused as ordered the court to deliver and turn possession (Knight) over him proceeding of said land.” In this adjudged Thompson found and to be guilty charged, imprisoned ordered that he be purge until he should him- sheriff, contempt, self of such issued its commitment directed to the Thompson herein, Barr, authority a defendant placed who thereof imprisoned Grundy County jail in the where he was from and in- 2, 1926, cluding April April May 23, Thompson 1924. On filed damages, suit for false imprisonment, for Circuit Court of Grundy Coimty against his creditors who had been beneficiaries Exchange agreement Farmers plaintiffs trust in the case of Barr, as sheriff, Bank defend- Thompson, supra, Knight v. in- respondents
ants. parties The same are defendants and Grundy County Circuit stant case. Court begun case thus in the The Adair change the Circuit Court of removed on of venue to County plaintiff petition to which defendants where filed an amended joint general proceed- subsequent filed a demurrer. The record ings County in the Circuit Adair is as Court of follows: day petition plaintiff’s “This amended defendants’ demurrer to whereupon takes sustained; is plaintiff court considered and aside; a nonsuit with leave to move to set the same “It is re- adjudged therefore that the defendants considered and plaintiff cover of costs have execution.” of this action and 2, 2, The above 1926. On December order was entered December 1927, naming defendants, substantially the filed same general same to which a demurrer had been sustained County the Adair .Circuit Court in Circuit Court of Jackson County. On defendants, the same date First National summons (of Bank issued, City) Kansas and Barr Sheriff of directed County, Term, court, January 1928, Jackson returnable to the said duly January 1928, same 11, were served. On Barr, First defendants Bank only National whom defendants service obtained, had joint averring b.een filed their th' demurrer petition did “not state facts sufficient constitute a cause of action” and that appeared upon it the face of the “that if defendants, any ever against cause them, these or either it barred the Statutes of Limitations.” This sus- demurrer was February 24, tained on 1928. on March plain- Thereafter tiff, with leave of petition” filed “his first amended County. Circuit Court of Jackson All the having defendants been *9 served, 22, 1928, defendants, on March the except the two defendants joint Barr, First National Bank motion, designated and filed a as a plea in dismiss, abatement and to ground motion as and therefo" averred, plaintiff that theretofore petition had filed an amended in County, against the Court of Adair Circuit the same defendants case, in petition the which named instant “contained the same or substantially allegations petition the same as the in cos' the instant general and on by that demurrer filed all of the defendants in said cause, County the Circuit Court of Adair . . . gener- sustained the petition adjudged al demurrer to said plaintiff pay that the costs cause and that defendants have execution therefor. Tha* arrest, plaintiff filed no motion in trial, nor for new nor did prose- he appeal, nor out a cute an sue writ of error from said which and was a final in became favor of these defendants on 2, 1926.” To this motion December an filed answer denying ‘‘ ’ ’ move, every allegation each and therein contained. The next in
447 the other than April 1928, the case was 20, when the defendants designated joined what is First National Bank filed and Barr in that is averred it petition, a demurrer to wherein the amended of a cause petition the constitute does not state facts sufficient the them, reiterates against then defendants, action either of or re dismiss, refers to up in pending matter set their motion to Grundy of proceedings view's the Courts Circuit alleged adjudicate/, the matters pleads Adair counties and as to res First the defendants petition. the amended On the date same Bank demurrers separate National and Barr filed but identical peti being such petition that grounds the amended demurrer the action tion cause “does not state sufficient constitute facts against upon the face” of appeal's “it defendant” that against this petition action “if that ever had a. cause 10, July by On defendant it the Statute Limitations.” is barred 1929, presented were pending and demurrers motions dismiss in the motion to heard the court. The defendant movants support same support offered evidence was received appear alleged which did not demurrer but the matters their upon will observed here petition. the face of It “speaking demurrer,” e., i. demurrer the averment petition appearing or of facts affirmative matter not petition show allegations with the petition taken recognized procedure. no our cause of action to is not [Pa exist Co., Gypsum Bridge v. Missouri Mo. cific Lime and Co. Upon S. orders of record hearing entered W. 853.] as follows: plea
1. “The abatement motion to dismiss of all the de- is except herein The First National Bank and J. O. Barr fendants sustained;” . joint 2. all “The demurrer of First except the defendants Barr, hereby Bank and is National J. C. stricken from files.” plaintiff’s 3. “The of defendant J. C. Barr to first demurrer . petition amended herein is sustained.” defendant, 4. First National Bank “The demurrer of of Kansas petition City plaintiff’s first amended herein sus- ’’ tained. then day July, The record shows thereafter on the 13th plaintiff by attorneys his announced he would “stand Whereupon judgment herein.” first amended dismissing as to all the defendants entered from which judgment plaintiff appeals. out, dismiss, supra,
To sustain the motion to set filed *10 Barr, National Bank defendants other than First the amended County Court, petition in the filed Adair Circuit record original proceedings petition had there and the filed in the Jack- 448 in evidence. The movants County Court were introduced Circuit
son final entry was a Adair Circuit Court position is that the record attempted stated judgment action tó'be on the of the'cause of .merits County Circuit Court original in Jackson petition in the filed petition alleges substantially same matter set out County Circuit Court. petition in Adair filed and rilled on in Adair judgment entered Appellant contends that no final was non-, a dismissal or County that his action there was Circuit Court and 1929, 874, providing, suit under Section Revised Statutes and that new action may if a “commence a a “suffer nonsuit” he suffered,” nonsuit time, year within one after such from time County was original petition in of Jackson his filed the Circuit 'Court timely a action. commencement of such new recurring Circuit Court of
By to the orders entered judgment County, supra, appears final was entered on the Adair it no whereupon demurrer. The court sustained the demurrer could, (Sec. 773, think, petition we have amended the as “of course” 1929), judgment R. S. petition allowing final be entered stood on dismissing could, if he on the demurrer from which he so, did, (Sec. a appealed, to do have as he take nonsuit elected 1929). R. S. No motion was made to set aside the nonsuit legal effect the action final taken to work a dismissal a adjudication suit, termination of that but not a final of the merits that) controversy, provisions the' so under of Section 874; County supra, the action instituted in the Circuit Court of Jackson year such was’the commencement of a new action “within one after meaning nonsuit suffered” within the of that section. The nonsuit 2, 1926, original petition was táken December the new suit County 1927. filed the Jackson Circuit Court December By computation period our rule for “the of a of time from an act day (Kimn done Osgood, on'which the act is done is to be excluded” v. 60; 19 Curtiss, Mo. Bank v. Old of Stoutsville App. Mo. 270; 458), Egyptian Company, v. App. and Parsons Levee Mo. Jackson'County timely therefore suit Circuit Court was com year “within menced one after such nonsuit suffered.” Movants point judgment against plaintiff to the costs entered for the Circuit County sustaining Court of Adair their contention that the orders made in 'that court were effect final on the demurrer there, to the. amended filed but such for costs by plaintiff an incident of the dismissal provided luit of case for 1254). (See* statute For the reasons stated we opinion are of the erroneously ground the court sustained the motion to dismiss on the therein stated. 1929) (Sec. 864, provides R. S.
The statute that áñ action only ‘‘can imprisonment false be commenced” “within years” two accrues. after the cause of action The amended petition filed in the *11 County judgment Jackson the Circuit Court which dismissed commence- appealed from, sufficiently pleads of that the here years Grundy County ment of a within two suit the Circuit Court case accrued, after the that cause of the transfer of action change County nonsuit of the venue to Circuit Adair the Court of upon there the same present taken and suit the commencement the of year cause therefore that of action We take it within one thereafter. appearing circuit upon petition with such the matter the face of the court National did The First separate not sustain the demurrers of e., it therein, Bank i. that upon ground and J. C. Barr the second appears cause of upon such petition that the face of the amended action, if any, plaintiff may matters stated the have reason. Limitations, petition that the but barred the Statute separate order and final demurrers upon of the their demurrers, separate was based ground the first stated that the to constitute petition amended not state facts sufficient does ground a This against demurring cause of same action defendant. defendants, joint other than was included in demurrer files. Barr, First National Bank from the and which the court struck of defendant petition While the separate demurrer -to individual to constitute stating First sufficient National Bank facts as not the demurrer against cause of action and it was sustained Barr, in- defendants, Bank and other National except First reading of the stricken, upon a ground, nevertheless that cluded (hereinafter out presently set petition, amended which we shall if no cause appear will merely petition), referred it as the stated then Bank is of action First as to the defendant .National sufficiency of as the defendants as to the other none is stated can defendant against a action any state cause analy- if an examination appeal determined here on raised and is therein of action cause that no sis of the discloses judgment dis- final then any the defendants stated would, result, manifest- defendants missing petition as to all the duty become our it would ly right judgment and proper abe S.B. to affirm it. 1929.] [Sec. by its the court petition which pass We then to peti- The to stand. had elected upon which dismissed various and domicile capacity corporate alleging the first tion individual residence of place of corporate defendants as follows: continues defendants 15, 1922, there to-wit, March heretofore, on “Plaintiff states Missouri, a County, Grundy Court Circuit was instituted (here wherein, to-wit being equity, a suit action, the same certain defendant plaintiff parties names of are set out therein). trustee, being Knight, defendants suit, Thompson sever- herein, jointly and defendants states that further “Plaintiff again separate- ally, together and each conniving acting times at them, Sid ly with sometimes with others and sometimes one and Missouri, 1924,' Grundy County, to-wit, heretofore, April 25, at to be unlawfully wrongfully, cause maliciously re- imprisoned, unlawfully wrongfully falsely arrested and liberty long time, deprived to-wit, for a for a strained and *12 25th and includ- days April to eight after said period of from on and wrongful of imprisonment ing May 3, 1924; physicial that said actually and liberty made his were plaintiff restraint of this and by County, Mis- Barr, Grundy done J. C. then sheriff of defendant ; souri instigated, requested so to do
“That Barr was and directed said severally herein, they acting jointly by and the other defendants ends; together separately and purposes and and for said to said instigated, requested “That was and said Barr so directed (cid:127) falsely seize this other defendants as aforesaid to so arrest and to liberty imprison, deprive him his plaintiff restrain and of and so void, unjust wrongful, pretense appearance false, under and of writings papers pretending purporting written and and ineffectual or Grundy County, Missouri, be an said Court to order of Circuit of made, purporting April 24, 1924, purporting to to be to-wit on and adjudge plaintiff guilty contempt of in said cause be of a this to court, pretended writing, upon said which said order made and court, purported records of court and the action of said to be said order, in made in of embodied said were and written the absence without, plaintiff being present court; pre- said this and contempt plaintiff charged this tended with which was therein not presented to be or claimed to be or to the be an act court to contempt presence or a in the but a committed of the court at time place presence court; and far from and without the of and after adjudge pretended purporting plaintiff the said order to guilty this of thereof, contempt upon a of was written an- the court the records writing, paper purporting pretending other and to be issued said Sheriff, to was written to purporting court said and delivered him to be the writ order and command or of said court addressed to said plaintiff jail seize, Barr to arrest and commit this and to' im- prison prior he him until should accordance with a order said of lands, possession approximately certain court deliver of acres Grundy, Livingston Counties, Harrison Missouri, respective- and to-wit, ly, 10,000 Cheyenne certain acres of land and Kiowa Counties, Colorado, Knight A. G. defendant trustee for the herein; other defendants writing upon further that said “Plaintiff states records court, purporting pretending an court,
said to be order of said adjudging plaintiff guilty contempt directing to be of said him to proceeding be said imprisoned, arrested and a made, was court, in same was the absence of this time at said jurisdiction and void without to make and was unlawful to seize directing him pretended sheriff, writ -or order to said Barr as of that himself imprison purge this plaintiff until should he which in writing said was described as records written pretended was based said order so issued void, ineffectual wrongful said court and was by itself jurisdiction; said court without said pending
“Plaintiff further so states that said suit or Grundy County said there been Circuit Court decree about June rendered and entered a the aforesaid Knight possession said as trustee was entitled to the lands; sélling same purpose that he was such trustee for the various apply proceeds payment of such sales sundry respectively sums herein claimed the other defendants decree owing judgment and to them from this and said Knight which said directing purpose said said to sell said lands for proceed Knight large said purport part of did as to do land, February, 1928; at in or Missouri about month *13 thereto Term, Knight February 1923, court, reported of said said judgment making a final his of said said court rendered sales and to-wit, afterwards, in sa.id cause that and such sales be confirmed 19, 1923, exceptions objections on and plaintiff March this filed his report term, at said by to were the court said at said and the same confirming 21, T923, on March entered tei’m overruled and as de- directing plaintiff, this providing sales and said further and Grundy, cause, possession in lands fendant in said said to deliver of Counties, as Missouri, of same Livingston, as to such and Harrison Knight purchaser thereof said to the were so sold about acres possession as Grundy same Land Co. such of the to deliver of and himself; sold, Colorado, Knight were not in to said and said lands thereupon as de- plaintiff “That same term court this at the Supreme application appeal to the fendant Court, therein filed his for an said judgment and decree of Missouri from the said final appeal allowed, caused plaintiff this thereupon court and said was and Supreme lodged said and appeal his to in Court said be said appeal 1, July until, to-wit, on finally was not determined therein 1925; a.npe'al pending while still “But nevertheless said on to-wit April Knight 1924, 12, purporting A. G. to act as such defendant being attorney agent
trustee and also defendants and other herein, request direction, instance, did at their and in said file cir- court, representation charge plaintiff in said cuit cause and that this refused, wilfully contemptuously had failed and the court court, aforesaid, as failed refused ordered the. had to de- possession wrong- over him turn of said land and liver and wilfully fully, contemptuously disobeyed and condemned directing plaintiff decree said this to turn over order and court that this possession, prayed to him Such and moved and th$ punished for plaintiff why be should not be cited to show cause he caused a court; and defendants so contempt said appear in said plaintiff citation be that he issued to this p. to-wit, why cause he April 24, on at o’clock to show one m., contempt of punished and there with for should not then be dealt premises in Revised Statutes said court under Section 1919; Missouri complaint
“Plaintiff further at time that said or states that said Knight suggestion made said on was so filed and 12, 1924, April long prior time this was as he had for a plaintiff possession lands, been, thereto and on said lands Missouri of said large stock, farming per- implements he had numbers of live using conducting property using sonal he had been faiming raising, feeding his vocation or the business live stock handling; knowing G-rundy of said Circuit necessary Court would time be effective and to be observed this intending plaintiff, might and to the end that he observe and obey lands, delivery possession order orders for said of said plaintiff Knight agreed Knight this and said and said consented that plaintiff opportunity this should have a reasonable sell and dis- personal pose property of his said said lands and accordance agreement purpose plaintiff might with such and for so possession, Knight agreed deliver said consented and that he should dispose have a reasonable time sell and property public of said at sales, lands, shortly and other had on said and at or after said Knight complaint filed the aforesaid application have this contempt, pursurance cited said arrangement Knight, proceeded with said to and did advertise said sale, personal property public for sale at the same to be had and held *14 to-wit, date, May early 3, 1924, at an on and said sale had been on advertised, April. and well in newspapers before both of vicinity by posting and notices of sale in and about said counties (here is personal wherein said lands were situate enumerated prop- consisting erty farming implements). of live and stock personal property of said items “That various of had been mortgaged financial necessities plaintiff’s of reason and under mortgages sundry sundry chattel to divers and various and different presence plaintiff’s at said supervision and that sale and his persons knowledge thereof, his because of details and items of said particulars property and of the of said personal mortgages, chattel advantageous necessary an sale of properties to said and to thereof; that such facts prevent great sacrifice were well known to defendants; arrangement with notwithstanding agreement and said
“That Knight, plaintiff which Knight upon and the consent of said said property, of arranging said sale advertising and have relied to instigation acting direc- Knight, request, and said at nevertheless being herein, the same as and at tion the defendants both trustee of agent of each attorney agent, attorney and and and the time their day maliciously 24th said wrongfully, wilfully and them, of did against charge complaint contempt and April, present said persuade said prevail upon and plaintiff said court and did this to its records said plaintiff this to enter the absence of adjudging writing, an order and purporting to be void charged determining guilty contempt as plaintiff and this arrested, sentencing directing seized plaintiff this to be and and Knight did thereupon capacities in said said imprisoned, and and writing purporting paper court to make out a cause the Clerk of said commanding defendant Barr an writ of the to be order or arrest, Grundy was, which then County, he as such Sheriff of jail him imprison plaintiff in and seize, and restrain this to commit plaintiff posses- jail him therein until this should deliver and hold Knight; thereby purge to said and said sion of said lands himself alleged contempt; writings and purporting to be the order
“That said adjudging guilty court, finding plaintiff this said and Knight, writing purporting writ charged by said and said to be a jail directing arrest, imprison, Barr and commit to said as sheriff to jurisdiction; and was void and issued without plaintiff, were each this to act under and virtue of said thereupon, pretending “That writings, defendant Barr did paper so at ineffectual void and wrong- falsely of defendants herein instigation and direction unlawfully wrongfully, plaintiff, imprison this fully arrest Grundy County, Missouri, and did confine and County Jail of in the (here description the discomforts of said him therein restrain out) ; set jail therein is confinement wrongful reason of the said false arrest and “That compelled forego, countermand and and forced imprisonment after so personal property the same had been sale of said abandon occur; published set, advertised acting, together that defendants so both states further “Plaintiff among wrongful doing other intent were so separately, wrongfully oppressing compelling purpose of for the end appeal pending and dismiss his said then to withdraw any rights surrender and release and all Court and to Supreme any same, might said lands both those have to he Colorado, estop in effort to conclude and those Missouri and claiming rights any or claims he had from thereafter ever himself *15 thereof; parts all and lands respect to said in ‘‘ arrested, being falsely plaintiff so premises, That reason liberty, compelled deprived his was imprisoned and (cid:127)wrongfully Appeals City petition and the Kansas Court application make to against corpus such writ defendant and did obtain for writ of habeas commanding 2, 1924, May said thereof on Barr at March Term May body plaintiff before said produce the of this Barr to attorneys him represent to compelled employ 1924, and was C. thereby cause the said J. Barr proceeding and did in such freedom; otherwise able to secure his plaintiff release this and was not great expense protecting in himself plaintiff put was so that this securing from said false and his freedom and release arrest and obliged attorneys thereby employ in he imprisonment was . liability expense premises. in . . incur them for reasonable imprisonment “Plaintiff that his false arrest and further states stated, great physical caused him hereinbefore manner humiliated, pain anguish thereby greatly he was mental good reputation standing com- having he a man of in his been thereto, wrongful munity prior all that he at times greatly injured damaged good acts of defendants also reputation.” punitive
Damages both actual and are and it is then al- leged petition plaintiff upon filed his based cause action Grundy County years within herein Circuit Court two after accrued, subsequent proceedings action said cause of County filing original petition Adair Circuit Court County, Circuit herein Court of Jackson to all which we supra. prayer damages The closes with a refer both punitive. actual and argument
In printed plaintiff the course of his asserts that only petition, not states a cause of action imprisonment for false sufficiently but also states of action cause for either malicious process prosecution or abuse of but this observation not malicious upon authority argument elaborated and no is cited or advanced proceeds support of same. The theory jurisdiction court was without contempt proceeding and that plaintiff imprisoned under which its commitment was void. There is well-defined and fundamental distinction between malicious imprisonment, prosecution and false in the former detention .the law, is malicious but under the due forms of in the latter the de legal authority. is without “In tention color prosecu malicious allege prove must tion malice and probable want of proceeding termination of the favorably cause and the imprisonment allegation whereas in false probable want of . . . essential malice cause is not is material only on the issue damages proceeding and the termination of the is not material.” process “Abuse pp. wrongful J. lies for the C. [25 445.]
455 duly process issued,” e., process of valid i. the malicious use of use was not process has been issued “to obtain a result which the after it A 612, C. J. 447 50 J. by law to effect.” C. intended [25 614.] reading petition of it not state suffices to demonstrate that does the process. of prosecution a of either malicious or abuse cause action for- imprisonment, false such any If cause of action be stated it is for case; theory theory plaintiff’s is that is the of it briefed here petition by theory the will be tested. examining foregoing demurrers, petition, for In the on the question any is purpose the whether cause action the of of ruling Code, liberally petition must, under our be construed the stated arriving meaning uniformly held that its “but court has at this . . . facts which the ex petition pleader the must state the plead of law or pects recover. will not suffice to conclusions It unsupported allegation of issuable pleader conclusions of the Bakewell, 224 Company Hollow Brake Beam v. facts.” [National 203, Mo. 123 S. as pleaded W. We take true facts well 561.] logically necessarily such as flow but the inferences therefrom pleading', averment of will will conclusions not aid the pleader disregarded, question sufficiency pleaded and the facts remains, support such conclusions and state a cause of action nor is a characterization of the which amounts to mere con facts a Eyssell, 332 671, demurrer. v. 59 clusion admitted Mo. [Mack 1049; City (2d) Stephens Liverymen Assn., S. W. v. Mound 295 596, 40; 246 S. W. ex rel. Mutual Mo. State Minnesota Life Ins. 129 Denton, 187, ruling 229 S. W. Co. v. Mo. Too in the suf 709.] pleaded will ficiency of to state cause of action the court the facts e allegations which are mad as look to material and essential not Long, and Iron v. made. Coal Co. well as to those [Lackawanna W. 231 133 S. Mo. 35.] petition facts, which, with neces
Does state the inferences arising therefrom, true, logically the im sarily and taken as show illegal. making In prisonment inquiry put to have been we generalizations petition found in therein all matter aside conclusions to the facts out a state in the nature of and look set all plaintiff’s put cause of action. We also aside matter ment of set, alleged malicious as to the motive defendants out promoting proceeding for instigating defendants’ bearing question legality the im has on the no motive only is material in action such as this on issue prisonment and an imprisonment damages. “A does not become exemplary lawful nor an of malicious motives does unlawful detention unlawful because purpose lawful because actuated laudable or founded become pp. C. J. good faith.” 449.] [25 allegations Noting apparently essential are con that certain looking alleged spicuous to the facts which are their absence orderly arrange in con- petition, in this and which we endeavor filing alleges prosecution tinuity, we find that equity County wherein defend- Grundy all the suit Knight, Knight plaintiffs Barr except ants herein were Thompson made defendants. It trustee and were Grundy County “entered a suit Circuit Court of Knight possession decree that trustee was entitled to the selling lands; purpose such for the the aforesaid that he trustee *17 payment such to the of" apply proceeds same and to the of sales Thompson’s suit; plaintiffs pursuant in that indebtedness to the that Knight thereto such acres said lands as trustee sold about of Livingston Counties, Missouri, Grundy, Harrison the and to Company Grundy report Land made to the court to and thereof report Thompson exceptions; of sale filed that the court over- confirming exceptions judgment the and its ruled entered the sale providing directing plaintiff (Thompson) and this “and as defend- possession ant in said cause to deliver lands" of said sold to the Grundy Company company purchaser Land to the said as thereof and possession . “to deliver of such the same as were . of not sold Knight himself;” plaintiff to the said appealed judg- that from that any to this It is appeal supersedeas ment court. not that or Continuing petition states, bond was executed or filed. the that on April 12, 1924, appeal pending" Knight “while was said still “as agent attorney and of the other defendants" in this action and instance, request “at their direction” “in and filed the said circuit representation charge a said cause plaintiff and that this wilfully failed and as ordered aforesaid, refused as deliver over him possession and turn to of wrong- said land and had wilfully fully, contemptuously disobeyed and and condemned the directing and plaintiff order decree said court this to turn over possession” praying him such and plaintiff that be cited to show why punished he not cause should for contempt. such It is ad- in the complaint mitted that “at the time said suggestion or contempt Knight filed made was so and said . . . plain- was, long prior tiff as he had for time been, thereto possession large ef lands on said lands said Missouri had numbers of stock, farming implements personal property." live The peti- alleges upon filing of complaint tion that aforesaid a citation plaintiff appear in that he April 24, issued said court “on p. m., why to show at one o’clock cause he should not then and there punished contempt be dealt with and said court." It is not upon was alleged that the citation served defendant. steps The next contempt proceeding out in in the set are April that on hearing had in 1924, was said court complaint, on said “in plaintiff,” thereupon of this the court absence entered its “order judgment adjudging determining plaintiff this guilty to be contempt charged” is- as an writ” the court “order or Barr, county, sued directed to of said com- defendant the sheriff manding him, sheriff, jail imprison “in plaintiff to arrest and jail and to him commit him and hold therein until possession thereby should . . purge deliver . said lands authority himself of” contempt; acting of such writ alleged that the Sheriff imprisoned plaintiff. Barr arrested and It is hearing “in absence of had and entered being present and without his that the court in court” and jurisdiction was without ad- plaintiff” “in the absence of this judge him im- guilty contempt and direct"that he be arrested writ prisoned and its therefore void and therefor void. "Without under which acted also commitment the sheriff any was without allegation other or the court further as to wherein jurisdiction any irregularity" proceeding or or of whatsoever rendering im- making the writ of commitment same void by authority prisonment illegal petition repeatedly, thereof orders, general effect, proceedings statement such avers all was without the writ of void the court commitment jurisdiction. something refusing failing
Civil to do defined as *18 6) (13 p. C. J. ordered to done a court in a civil action be of, attempt the execu prevent an disobedience resistance or to to a order, of court judgment, a mandate tion of lawful decree or with, attempt obstruct, due an to adminis such interference or 9). (13 This justice, contempt C. J. as a tration to constitute judgment in the upon rendered makes collateral suit a attack void, writ of be contempt proceeding alleging judgment to that illegal. commitment by, 46 S. Cockrell, plies to jurisdiction [In common re W. Howell, 273 a [9] 280 151.] collateral attack law have inherent issued Mo. Our circuit courts and statute 269, Mo. thereon void and 217 S. The same rule 96, power have upon 200 S. W. W. jurisdiction any as to 524; courts deal other therefore 65; therefore In re with State judgment of record in Knaup, matters contempt applies ex rel. imprisonment 144 with here as Caldwell a contempt. Mo. general both 653, ap .of v. a domestic jurisdiction, e., attack i. a collateral general that every general jurisdiction by party a thereto of a court [Ray judgment. indulged support the presumption is to reasonable state cause Ray (2d) In order to a (Mo.), W. v. 50 S. 142.] out matter upon plaintiff to set it is incumbent of action herein pointed showing jurisdiction. we have affirmatively a As want of subject con jurisdiction matter of of the the circuit court has out filed duly petition complaint tempt. states a The nothing of the court charging plaintiff therein to subsequent judg- be, of the appearing must view contrary it to 458 court, presumed proper
ment of the and to to have been form court, sufficient, have stated facts if a found constitute contempt; whereupon says a citation issued. the cita- The commanding appear tion issued to herein him time at a place charge contempt. therein It fixed to answer such is not timely regular form, that the proper citation was not seasonably issued and served reason the court not and for that did acquire jurisdiction person of the of defendant. It must then be presumed, contrary alleged, duly since the is not that the citation was timely jurisdiction thereby acquired served and that the court person. petition being The matters it silent as to the noted presumed ought must be “that whatever to have been done was not only rightly duty done but that it was done.” “As the first all jurisdiction” keep strictly courts is to within the limits of their entry judgment by pleaded petition, nothing contrary to the appearing, invokes presumption, and raises the necessary give jurisdiction all the facts the court to render the particular duly every step necessary were found and that give jurisdiction taken, Ray Ray, supra. had been v. allegation
The mere present was not in court hearing a.t the judgment, true, time of the taken as nevertheless jurisdiction does not show the court was without to hear the com plaint judgment. Being and enter proceeding for the enforcement qf an order or decree of civil the court suit the defendants’ presence necessary was not to authorize judg the court to enter a ment; a appropriate process giving citation is the notice and so far appears from the the citation issued was sufficient to Thompson inform charge against character of the him and of place hearing the time and op at he would have an portunity present requirement defense. “The process of due in such cases is satisfied adequate suitable opportunity notice and appear and to be States, heard. C. F. v. Cooke 267 United U. S. 537, Sup. 390, Ct. L. Ed. 774.” v. United [Blackmer States, 76 L. *19 375; Barclay Ed. Barclay, v. 471, 184 56 Ill. N. E. 821.] Thompson The fact that did hearing, not attend proper the after and timely given, notice deprive jurisdiction did not the court of to proceed complaint to hear the judgment. and enter its argued petition It is next that the shows that the contempt instituted, proceeding tried, judgment was entered and commitment appeal issued while the taken Thompson from the decree of the equity court in the case pending, was and undetermined, in this court for and that reason the jurisdiction circuit court was without possession to enforce the order that of the land be delivered as made judgment its decree and in equity the case. The states merely appeal taken, nothing that an was more. It allege does not supersedeas given that a was whereby bond the enforcement of the
459 the merely stayed. allegation judgment was With the limited attending the presumption appeal assertion that an was taken the dis not judgment discussed of the and which we have above court necessarily and allegation sipated thereby. it cannot From that allegation The logically given. appeal inferred that an bond jurisdiction the no than was invested with shows more this court judgment of the circuit appeal but in the absence of bond the any further powerless to take suspended was not that while and to enforce judicial act appeal, in could pending action the case the [Rodney through process. judgment proper execute its 445, Butler, Mo. Gibbs, 1, 187; v. S. v. Mo. 82 W. Vantine judg jurisdiction render 157 S. W. The circuit court had 588.] suspended equity in was not ment suit that juris authority stayed by appeal. In court had such case the may been have “to such such writs” as diction “necessary make orders and issue effect carry judgment or decree into and essential to operative.” p. render R. it C. L. 1034.] [7 “intending and to says Plaintiff his delivery of might obey for that he said order end observe Knight agreed and possession plaintiff of said lands said this Knight plaintiff a have reasonable said consented that this should said opportunity dispose personal property on sell and said of his lands;” said ... at sales to be public lands and other contempt Knight “shortly complaint after” filed public his proceeding person sale of proceeded to advertise imprisonment 3, 1924, May al that his property to be held on conduct, damage for interfered with that sale may set pleaded have been an amount The matter thus stated. perceive merely We not damages out with do connection ‘claimed. tend validity contempt proceeding how or would it affects the proceeding, writ of commit to show that therein and judgment, pursuant decree ment issued to such void. The con equity complaint in suit was on March entered year tempt proceeding 1924. For than a April 12, was filed more pos he was land and deliver ordered the court to vacate the afterf trustee, Knight, Thompson Company, the Land session thereof appears says he possession, to have retained continued as Knight portion agreement petition, under an with might personal property by he have a reasonable time to sell sales hi.s complaint proceeds made to be on the land. After is filed he May Assuming 3. public property” advertise sale of “such agreement Knight had, must, such with is not we it agreement presumably when the was made and it was at or made agree the time the since about decree was entered sets up explanation of, for, ment obey as an and excuse his failure to order and decree of the court that he vacate said lands and deliver *20 possession Knight, trustee,
immediate thereof to Land Com- the pany. hearing We must upon assume that the court the found facts sufficient judgment to warrant and its if it- be allowed sustain agreement time, Thompson relieved, such a was reasonable compliance court, from with the order of the matter of what was the a reasonable time whether he and continued had retained possession possession and refused to deliver' after such reasonable granted finding judgment time had been was the resolved of the court. point sufficiently
As we have endeavored to facts al- out are not leged jurisdiction showing a want the court to entertain and contempt proceeding. power, determine the The court had inherent case, proper judgment, e., a complaint to hear such enter i. jurisdiction subject of the nothing matter contrary the being alleged, allowing presumption attending the judgment jurisdiction person regularly of the of the acquired. judgment Thus facts impeach do not tend to void, or show it anything to be nor is found the.facts out to set show the writ of commitment issued thereon to have been other regular than fair and separate on its face. The demurrer Barr, serving writ, defendant the sheriff properly sustained. general being The “process rule face, not void on its issued judicial a having general jurisdiction subject-matter tribunal person protection a executing is . officer it. required The officer is beyond not to look validity the” writ “to the regularity proceedings it is founded nor exercise judgment touching validity its point of law.” «J. p. C. [25 But our conclusion 486.] from the examination we have made of as a is whole that the facts therein set out not are suf- ficient to state a cause imprisonment of action for false any the defendants. Such facts imprisonment do not show the have illegal; been appears it judicial rather to have been under process issued, regularly upon fair its face and based competent jurisdiction. court of alleged wrongful Where the. pursuant judicial detention is process in the action brought imprisonment for false showing must state facts issuing process jurisdiction. was without For the reasons stated the of the circuit court dismissing petition, defendants, as to all the effected a correct result and is Sturgis therefore affirmed. Hyde/'CC., concur. : n The opinion foregoing PER CURIAM Ferguson, C., adopt- opinion
ed as the of the court. All judges concur.