*1 ' PER CURIAM. BOHLING, C., opinion foregoing opinion of the court. adopted as the concur.

All, DURWOOD, Plaintiff-

Edward D. Respondent, Dubinsky, DUBINSKY, Ruth Irwin

H. W. Dubinsky, Estate, of Bar- Executrix Deceased, Dubinsky ney Dubinsky, Broth- Corporation, Theatres, Inc., Defend- ers ant-Appellants, Company, Corporation,

Commerce Trust Defendant.

No. 44509.

Supreme of Missouri. Court

Division No. 2.

May 14, 1956. Rehearing or to Transfer Court

Motion Modify En Banc Denied Motion Opinion July 9, Denied *3 properties employed used Man- Kau-fmann, Sam Joseph, theatrical. B. L. St. pro partnership. Thomas, City, the former also dell,. Kansas Harry L. .It pay & vided that Edward D. Durwood was Culver, Phillip, Kaufmann appellants, . Pop- Thompson, Dubinsky the sum three brothers Smith, Popham, Joseph, of- St. $400,000 City, equal an additional sum ham, Trusty, Kansas & Mandell profits of the net derived from' counsel. 25% operation of certain earned named theaters ' M. Terence Boatright, William G. May period January from 1946 to respondent. O’Brien, City, for Kansas addition, Edward D. Durwood Dubinsky agreed to each of employ May 9, beginning brothers for a term STOCKARD, Commissioner. *4 30j 1949, compen expiring and as and June court circuit brought in the This suit was equal pay sation to them a sum therefor Missouri, by Edward County, of Jackson profits opera to of the net from the 25% plain- Durwood, hereafter referred D. period during tion of the same theaters brothers,- Du- tiff, H. W. against his two Barney employment, paid be "to 10% also Dubinsky, and binsky and Irwin each, Dubinsky and Irwin H. and to W. 5% Dubinsky, executrix Ruth against Dubinsky. net computing The method of (an- Dubinsky, deceased Barney estate detail, profits pro was set but it was out Broth- Dubinsky plaintiff), other brother of sale” vided that in the event of an “actual Trust Theatres, and Commerce ers Inc. any properties of the named theatrical appellants are All defendants Company. compensation Dubinsky of the brothers' Company. except Trust here Commerce computed should be on the basis of en- appellants, the objections of Over experienced profits for the months twelve The referee. referred to tire case was preceding agreed It was that sale. also is voluminous. this court record before could, Dubinsky during brothers their testi- twenty-three volumes of consists acquire any employment, any properties of more papers, and pleadings and other mony, character,' did provided kind or that they 2,000 exhibits. than business, “engage theatri other otherwise,” Dubinsky or broth cal and the 1946, 9,May years prior to For several engage ers were not to in the theatrical Marjorie Stanley Durwood and plaintiff, H. May “directly indirectly” business or from Dubin- children), Irwin (plaintiff’s Grant 1, through July in four named' Dubinsky Barney Dubinsky sky, H.W. - cities, Joseph, including Missouri. St. oper engaged were partners and were required by agreement Plaintiff was name, theatres under ating certain deposit corporate certain notes and stock Theatres.” “Durwood-Dubinsky Brothers in escrow with Commerce Trust Com ownership concerning dispute A arose performance pany pledge to as a secure in an effort properties, and theatrical of the obligations. contractual The con of his Barney, H. W. interest their to establish provided Dur- tract that Edward D. also against suit brought Dubinsky and Irwin wood to have the sole exclusive was Durwood, Durwood, Stanley H. D. Edward “Dubinsky right use the names Bros.” corporations and several Marjorie Grant “Dubinsky Theatres” in the Bros. four to, of, leases some held the title which cities until named June During the properties. the theatrical1 reached, a settlement that case died, contract, Barney entered, July On Dubinsky and a decree a consent right equal sum into and his to receive a 7, 1946, was entered December dated 10% earnings net of the terminated. His ex- of the settlement. the terms setting out party is a to this proceeding, the Durwood- ecutrix provided that That contract reference made herein to be terminated as of when “Dubin- Dubinsky partnership Barney, sky brothers” the term includes Irwin Irwin that May title, Dubinsky and also any right, Barney H. either W. Dubinsky disclaimed H. W. Dubinsky his executrix. to the various in or ownership interest n riving profits.'. Dubin- was asked at. net The and Irwin court H. W. October 1948 rights D. to declare the Edward and relations against sky separate suits filed parties; that.plaintiff required to make Durwood, federal in the court one audit; plain- records Buchanan his available for other in the circuit required tiff correct declaratory render a true and County, judgments seeking account; on the .contract and that declared lien-be compensation due under ' property plaintiff held Commerce paid. present -This had not been Company. plaintiff No- Trust on commended- was then Dubinsky broth- against the vember plaintiff July what he On filed Company. ers Trust and Commerce “supplemental petition” calíed a in which alleged petition’ in one count and it alleged he that he was the owner of plaintiff delivered Commerce had- “Dubinsky “Dubin- trade names Bros.” and corporate Company stock Trust Theatres,” Dubinsky sky Bros. and that the provided purposes for-in the *5 1, 1959; pursuant contract July that to Company security he Trust Commerce 7, 1946, against dated December as each of performance of guarantee pledged had to brothers, Dubinsky plaintiff had the sole part, of the on his but because contract right exclusive until and to June against pending suits him and two “Dubinsky use the name Bros.” or “Dubin- Dubinsky a cloud claims brothers of the cities; sky Bros. in the named Theatres”; property : had titlé to .his been-cast-on September 13, 1949, Du- that about. Irwin pledged security.' prayed Plaintiff that as a Mis- and H. W. binsky formed Dubinsky Dubinsky di- brothers ordered and corporation by souri the name “Dubin- .of rected and to claims- demands exhibit Theatres, sky reg- Brothers its Inc.” with against pledged property, that it be. Missouri; Joseph, office at St. and istered him, if amount be owed ascertained acquired defendants motion that these thereof, upon payment the Com- and that picture theaters of the named cities ou.tsi.de Company merce to deliver Trust ordered engaging and the theatrical business were plaintiff property pledged to all the then corpora- place of from the of said business answer,. By with it. Trust Com- Commerce Missouri, Joseph, all in violation tion in St. pany unwillingness re-deliver; stated an to purpose of said contract property plaintiff pledged without up- upon plaintiff fraud perpetuating a direction of the court. Theatres, ,Br.others public.. Dubinsky on the party added as a new defendant. Inc. was The other defendants filed numerous mo- requested Plaintiff that defendants tions, overruled, were all of which which enjoined doing therein be from named challenged, among things, jurisdic- other' Missouri, Joseph, theatrical business St. ground tion on the and venue that Com- “Dubinsky using the name Broth- and from Company party merce Trust a real Theatres, Inc.” The trial court issued ers joined fraudulently. and was interest temporary injunction requested. as brothers, Dubinsky protesting still 11,1953 Dubinsky venue, February jurisdiction separate, broth- filed sim- On each, sep- “joint, their petitions. they called ilar cross answers and what filed ers cross-petitions” in-which supplemental Dubinsky answer denied arate it was plaintiff “actual had made paid they alleged brothers had been full the amounts January all the theaters due 1947 of. them under the In each cross sales” contract. meaning of contract petition it was contended that had within the compensation receive entitled to failed include various items of were named profits during theaters gross receipts improperly and had deducted on the based preceding the sales. specified expense items in ar- numerous the twelve .months substantially same as be an three counts were designated filed what he Plaintiff “supple- original petition petitions and the two supplemental cross answer to purported petitions.” were mental Count IV brothers Dubinsky that the and denied allege a cause of action a construc- what compensation than other entitled trust, alleged tive Irwin and H. W. “for them, alleged he also paid he had Dubinsky, others, conspiracy vio- Dubinsky broth- with answer” that the further 7, 1946 and giving lated the contract of December the contract ers had violated prior engaged in the theatrical business by en- plaintiff, their services to exclusive built, acquired July during the 1949 and had in the theatrical business gaging operated property theatrical and received name employment under the term of their (cid:127) Theatres,” by profits prayer in this therefrom. The “Dubinsky Brothers impress prop- Dubinsky was that the court brothers count which said reason of pre- thereby, and erties obtained the rentals good conscience “are in therefrom, profits with a con- recovery.” derived cluded from Ap- plaintiff. trust in favor structive pleadings that stage was at this previously pellants objections reserved all ap court, objections the trial over- the reference the issues and to made to a referee pellants, referred “this cause” to also jurisdiction and venue and contended hear and decide with directions “to petition contained new that the amended report findings his whole issue herein and petitions Their answers and cross matters. his decision thereon to of fact and previously substantially the same as were (the court.” Trial was commenced trial) filed. and was the referee on before June (cid:127) August number on concluded -Appellants’ first contention is that hear intervening. During this of recesses *6 original petition plaintiff’s -failed to state (cid:127) 28, 1953, plaintiff filed his July and on ing Trust against relief a claim for Commerce petition” supplemental in which “second which, only Company, the defendant was plaintiff in an alleged he that he was Missouri, County, a resident Jackson in pending suit other and different the Circuit Court -of therefore Jackson against Twen District Court United States County was without venue.- Century Corporation, Film Fox tieth ' respect others, damages with seeking treble statutory (all re Section 527.110 alleged' Roxy Theater because of 1949;V.A.M.S., un are ferences to RSMo practices, although monopolistic and that provides stated) otherwise that when less : conveyed, as- Dubinsky brothers had sought all shall decláratory relief is persons rights signed and transferred any in parties who have claim' be made properties plaintiff, they were theatrical by the dec which would be affected terest in Plaintiff an interest that suit. claiming Company wás Trust laration. Commerce that the prayed judgment declaring for a by pledge agree obligated the terms .of the Dubinsky right, had no title or brothers ment, copy of which was attached to the any proceeds of that suit. claim in or to property pledged petition, deliver the of this cause reference After any Dubinsky “in the event of brothers Dubinsky brothers answered of action plaintiff obligations of his un by default” any if interest the suit and disclaimed contract, .pledged and to return the der “actual had been an sale” of there he, plaintiff if did default. property to not theater. here, by a claim circumstances Under the plaintiff Dubinsky brothers that hearing before the Subsequent to compensation due under paid them the petition” filed an “amended against a claim was itself countsj petition the contract alleged that the in four property. If Trust Commerce pledged purpose consolidating the filed for the party made would Company it and the raised plaintiff’s pleadings issues entered, by judgment Sec be bound pleadings conform the to not thereby, and to merely 527.110,and even if it claimed proof and the The first- tion issues tried.

915 as a interest of the right stakeholder it had a reference of each count the order property. (cid:127)in knowing which to whom to deliver by issues were first-raised Clay County pleadings. ex rel. State and Use Waltner, State Bank Mo. v. Count corresponded I proper party with the It was a defend S.W.2d original petition and- sought provides relief ant. Section that when 508.010 form of a declaratory judgment. defendants, such there are several some residents a suit an issue of state, fact to be tried and de and others which nonresidents of the termined in the same here, manner as may issues of brought situation suit fact are tried and determined in any county any other civil of this in which state actions, 527.090, Section proper which in objections of defendant resides. The cases include trial by jury. would Dubinsky the cir Crollard brothers to venue of Co., v. Northern Life Ins. Mo.App. original petition cuit court as to were S.W,2d 355, 200 However, 375. the com correctly overruled. pulsory reference of the issues of fact in law, an action at by otherwise jury, triable appellants filed their answers When deprive does not a litigant of his constitu they petition,” they each filed a “cross tional right to by jury if the reference objections previously reserved the raised by is authorized Section 515.020. Creve They motion. now contend-that did Tamm, Coeur Lake Ice Co. v. 138 Mo. appearance thereby general not enter a 791; 39 S.W. Hancock v. High State subject jurisdiction of themselves to the Commission, way 347 Mo. 149 S.W.2d permit judgment the court to entered 823; Vannoy Co., Swift & 356 Mo. against them on what was later denomi 350; Notes, S.W.2d 25 L.R.A. II, nated as counts III and IV of the L.R.A.,N.S., Therefore, in a law petition. amended question case the first is whether the refer specifies objections Section 509.290 ence is authorized Section 515.020. jurisdiction may improper venue provides Section 515.010 that all or motion, pro- raised and Section 509.340 the issues of in an fact be re- obj properly vides that no ection when raised ferred the written par- consent of the by “pleading motion is waived over or *7 515.020, ties. Section pertaining to com- entering into the the In trial of merits.” reference, pulsory provides that “Where objections by case raised motion this the parties consent, the do may, not so the court by en- pleading were not waived over and application either, upon the of or of its own the.merits-, the trial tering into Johnson motion, direct-a reference in following the Philadelphia, Mo.App. Fire v. Ass’n of 240 (1) cases: Where the trial of an issue 1187, 225 but review we S.W.2d require fact shall the long examination of a objections find that those were without side, account on either in which case the Therefore, appellants merit. are in the referees be directed to hear and decide position by filing same their answers and issue, report upon any the whole or to petitions they cross as would have been if specific question of fact involved there- by objections motion had been made at * * in; *.” all. Appellants next case contend that this a Whether reference 515.020, may referable under Section ordered was not must be determined from pleadings the by and that the trial of the issues in the the issues raised the petition parties, Robertson, of the amended Mo.App., various counts be- Rice v. 48 deprived them right a referee of their S.W.2d and the fore court must assume jury. testimony court to trial Two that on the issues involved petition take the counts the- amended- will the fullest latitude embraced with equity IV) pleadings. II and were suits in Bank of (counts Ridge Oak v. Duncan, question by jury trial is there in- 328 Mo. and no S.W.2d City Louis, shall consider the correctness also McCormick We See v. of St. volved. 1038; trial authority v. Pursuant to what Hancock did 166 Mo. 65 S.W. supra; George court referee? Commission, refer this suit in Highway to a State Realty Plaintiff the or Contracting Co. v. Acer contends the time of L. Cousins at Co., separate can der Mo.App., 885. There of reference were no S.W.2d “there is- com question justified that the trial of the counts” and that case a be no but peti- raised, pulsory reference of the issues original fact “all sues of tendered pe- equitable both” tion, original legal whether be petitions cross responsive plead- petition cause it respective which determines tition thereto, action, the examination character of which was required ings primarily meaning accounting, for an and a refer within the long a account The items ence carries 515.020. “all either as used in Section issues on side term the referee where are all expense involved covered incident of income and years primary support in- cause In period in of three of action.” a excess position plaintiff thir- operations accounts of cites Ittner v. St. volved Ass’n, Exposition Both separate properties. Louis & Music Hall theatrical teen McKinley order Mo. requested accounting. In S.W. sides Durbin, Mo.App., presented it was thus S.W.2d 286. to resolve issues place prop- necessary on the for someoneto We consider it immaterial that income ledger all items of er of the side “sup- for an .injunction labeled his suit as a period each expense entire for the plemental petition.” It should have been theater, therefrom and to determine pleaded separate as a (as count sub- by the terms of profits provided as net sequently done petition) the amended not be accounting could contract. This it as w.e shall treat such. Neither can plaintiff’s to all of without resort made agree injunction we of the issues account, the issues 'involved books suit were “incident” issues in- only the items classification original petition declaratory for a judgment expense, also the correctness but come or accounting. and an In the Ittner and Mc- period a of several amounts. Over of the Kinley petition required cases the the trial entries, canceled hundreds of book weeks of an fact involving issue of the examina- en- contracts, travel checks, items of long tion of each case the account. up expense, etc. were taken tertainment counterclaim, filed defendant which stand- by item. constitu- item No and considered ing alone; referable, would not have been jury right facts tional counterclaim, but in each case if de- reference of the whole by the was violated successful, fendant was constituted a de- petition pertaining- original in.the issue plaintiff’s fense In each claim. casé long examination of account. petition it was held determined the .character of the action and that" refer- *8 n Thefirst petition III supplemental (count ence not be could defeated an answer separate was petition) amended a in the up which set fraud as a defense and a injunc- for of action an and distinct -cause counterclaim based on that fraud.' Neithef had no or connection It relation tion. presents of these' cases the situation we petition except the original the with here, supports have and neither theory the pertained each subject matter of join can petition a in one two The result of the account- contract. same separate action, distinct causes of one petition original would have ing under not, referable one and then force the injunction of this bearing the result no on try defendant to all the before issues a suit, trial vice versa. The of no issue referee. required suit fact injunction of long account. The of a examination support in heard the evidence

judge of Plaintiff cites two New York temporary injunction, for a application cases, but supports posi neither of which his only heard the evidence on tion. Chesebrough, In v. 315, Place 63 N.Y. injunction. complaint in permanent was three counts: The first 293, de paid Blyth, for Caulk a v. Mo. involved money advanced was benefit, equity for services reference in the second of a fendant’s suit paid at rendered, money description ap correct the a deed. On and the third peal de support opinion the author request for the said: “From defendant’s inspection reported third counts first and of the evidence as fendant's son. The referees, did justice The second I long account. have doubt the involved “Although plaintiff. of this case on The New York court held: is side not. complaint authority claim services But the states the court had no on its own [for separate and distinct cause motion to refer subject as a it. The whole rendered] action, really governed by but one of reference1 it is fact is the statute.” For demand, prop plaintiff’s is this reason case was items of reversed and particulars. cause erly the bill of stated such remanded. separate cause of action It is no more a 606,154 766, Young, Reed v. S.W. Mo.. many account fur than of the items of the 768, involved an action at It was held law. * * * this (I)t apparent that nished. is that the examination long account was causes of action which is not a case where required and that refer- compulsory, is joined with one which are referable are improper. ence was During the discus- * * not, same effect is Con To the sion, opinion, Judge author of the Jackson, App.Div. 65 N.Y.S. nor v. S3 Bond, made the following comment: “The New York case cited the other purpose of the was to statute [reference] plaintiff. sound we believe to be the What prescribe actions conditions which v. Kalb and correct rule is stated Evans referee, at law could be sent fleisch, Abb.Prac., N.S., N.Y., 13, hear, decide, extent to which he could "all stated in the com causes report make thereof the court.

plaint only part must be If referable. designed regulate conduct referable, one issue court cannot re * * * in equity, suits lan- since this others, fer in Townsend but as said , deprive courts, guage sitting did not circuit if Hendricks How. Pr. such [40 143] equity, any jurisdiction in. or method of require referable ex issues should ever procedure enjoyed which had been ex- amination, a reference can be as to ordered equitable ercised in the administration of those, after the trial of the other issues.” jurisdiction; right power and the expressed Cooper, The same rule is equitable to refer issues in actions awas References, Referees and See also § distinct chancery courts.” function Odell, Abb.Prac., N.S.yN.Y:, Flanders v. This statement wholly obiter dictum. References, C.J.S., 247 and 76 c. § Blyth Caulk v. was not mentioned. Plaintiff contends that Co., if the issues of Pump v. Star Bucket Johnston injunction this suit were not referable Mo. 202 S.W. was a law 515.020, reason of Section the trial court A reference case. was .made ob- without could refer appeal this suit in the jection. exercise On it was contended that equitable powers its “ancient equi- long since the suit involved a it account jurisdiction.” support table thereby equity. of- he became a suit In re- Houts, cites 2 Missouri Pleading viewing history and Prac- of the reference stat- tice, utes, wherein there Judge pointed is a statement Graves out that in § Laws *9 the effect although Missouri, 1825, 1849, this court once until of and there were “ equity acts, held that an only case practice is referable one two entitled at ‘Practice “ pursuant 515.020, ”, to what is now Section it Law* and the other entitled in ‘Practice has since recognized the power Chancery.’” “Now, He inherent of then said: bearing equity a court of any acts, refer independ- case in mind the- two one distinct for law ent of the support In chancery matters, statute. of this state- matters and one for let ment the author cites three origin cases which the real us trace of our reference we provision now quoting consider in their After chronological law.” a from the ‘ practice practice governing order. act at of therein, cific question by “first reference of fact an it was the involved

law lie stated that pro- up purpose, issue statute”, commenting on its made therein for and after it, or referenc- origin provided”, of as visions said: “Thus the refer hereinafter only X, place 13, 128, Missouri, chap. their Section Art. had RSMo es in 1100, because and was true Section This RSMo The first in actions at law. quoted provisions for was need above referred ac- chancery there in cases law, in chan- tions necessarily its master at and the in- second referee. The court every mat- equity. By pro- all cluded suit in be referred these cery, to whom could account- ters, taking specifically provided of an visions was including the it that an in issue necessary the cause could be referred ing, if such was to a referee for trial only provided”, or, this quotes chancery.” in Plaintiff “as hereinafter in other pending position words, support subject pertaining his statement in statutes last equity general by may, compul- its references that a under consent and court sory any equitable cause of powers, references. now refer seems obvious that However, practice when when the in a referee. two which were action to codes 1849, it prior prac- does effect pertaining in context one statement read to. prac- No mention tice at support plaintiff’s position. law and other pertaining to Blyth. chancery tice containing pro- Caulk in was made of each repealed reference,

visions for in were enacted, practice ap- 1849 and one act ad- necessary, it or at least We believe plicable equity to law and cases con- visable, question whether to re-examine reference, taining provisions new for notwithstanding equity case is an referable intention was to authorize reference pre- provisions 515.020. of Section As only provided. case as therein mentioned, to 1849there were viously prior addition, provisions the two pertaining codes, law practice for actions at one two by. the trial jury, by cases court equity. code for in Each and one suits by a clearly mandatory it made provisions pertaining to contained every in equity (except issue case cases, those at law to of certain reference those submitted to a jury) be tried to a referees and those commis- unless reference authorized. In 1849 distinctions between sioner. escape We cannot the conclusion that the law, and between actions different actions at result Blyth reached Caulk v. that the equity were abolished at law suits subject “whole governed reference is adopted govern- practice and one code the statute” was correct. procedure in civil actions. ing the 1848-49, Missouri, pp. Laws of 73-109. pertained XVI that code changed by Article Was this rule provisions adoption present present referees. code of 515.020, reference, procedure? first Chapter Section civil 6 of RSMo 1939 18, X, 1855, chap. appeared designated Section Art. what was contained as “Civil 1855,

128, since remained RSMo and have Procedure—General Code” and it con procedure twenty articles, civil unchanged. which, In the code of tained one Arti 15, 1855, until remaining unchanged present cle identical pro with the 1943, following pro- -chapter 515, quoted were two visions of RSMo V.A. M.S., added): '(with italics “An issue of visions entitled “Referees Receivers.” recovery of mon- Legislature repealed in an In 1943 fact ten of the specific personal chapter only, prop- real ey or of articles of RSMo en by a,jury, jury provisions thereof, be tried unless a erty, must acted new lieu but waived, ordered, repealed was not Article 15 trial be was reference X, provided.” change Section Art. If there changed. was a hereinafter chap. pertaining RSMo 1855 Section rule to references the 1943 “Every repeal other issue mtist act resulted from the RSMo it Sections *10 court, which, 1100, however, may 1099 RSMo 1939. In by tried lieu upon jury spe- opinion any 1099 there was enacted of a is take Section what

919 549; parts ningham, which, Thayer 35 Mc 510.190, in Cál. v. now Section 562; Naughton, Ill, 22 right of 117 N.Y. N.E. material, “The provides that here 433; Camp Ingersoll, by v. 86 N.Y. Fromer the constitu- by jury declared trial 366; 631, pre- Ottenberg, v. 36 74 Misc. N.WS. by shall be given tion or as statute Avery Sand, 622, App.Div. 41 In lieu v. 9 N.Y.S. parties inviolate.” served 53; N.Y., O’Reilly Hun., Kingston, 30 what is v. enacted 1100 there was Section 508; Annotation, 314; Note, 126 sets A.L.R. This section 510.310. now Section 1136; Ann.Cas.1912D, Cyc.References in 34 be used procedure to in detail the forth 2; C.J.S., References, 76 jury is in which § § the trial of cases present equity in waived and cases. in its procedure, when read uniformly

code of civil It has been held pertaining chapter 515 entirety, including that it is a court to reversible error for one references, clearly indicates to refer issues to a referee for trial when not in was to purposes 1943 of the revision by Blyth, Caulk v. authorized statute. between procedure 293; eliminate differences 55 Mo. Lake & Ice Co. Creve Coeur 791; court without a before the Tamm, 385, law cases tried v. 138 Mo. 39 S.W. clearly is evi- equity Davis, 1, This jury Klingenberg Mo.App. cases. 268 v. 219 section, 510.- single by enacting 99; denced Life S.W. Thornton v. Association 310, procedure to used pertaining America, Mo.App. 544. All these it jury, and is cases, without a Blyth, pertain in all cases tried except Caulk v. by provision said cases, further evidenced law and the conclusion is reached in all scope such of review that the section author on the basis that a reference not We, therefore, the same. shall be by deprives objecting cases ized the statute amend- that the compelled to conclude are party right of trial of his constitutional proce- of civil 14, the code ments of 1943 to jury. Mo. Art. But § Constitution did not to and intended V, dure were provides courts shall that the “circuit * * * as it ex- authority a court change the original jurisdic have exclusive case, equity prior refer pro isted in all civil cases not otherwise tion ” * * * authority ref- for for, and that the we think this vided action, whether of of issues any particular erence when in' case means governed Section equity, now provision law other than no there is 515.020. parties en- are the circuit court court, try their case before the titled to compelled presented they over question cannot be precise and that This try objection New before a ref- Mexico the case Supreme Court of in their appellants Prejudicial Com error to Construction eree. v. Southwestern Tietzel deprived 126 A.L.R. were P.2d in that pany, 43 N.M. resulted duly qualified judge pass equity and it was right to have suit was 307. The credibility the witnesses as could refer the court contended person who had equity powers. The from a distinguished general its under case system judicial Mexico had conduct New standing our court commented action in from Mis this cause of reference statute trial of adopted its appellants. objections ex This souri, carefully worded and in a over ref cannot be removed it held that the is not and opinion prejudice haustive , report of the is in referee was was exclusive. This fact that erence ’statute authority. judge upon excep- by the trial weight of See reviewed with the accord County, part judgment That County Dodge v. tions thereto. Winnebago on count III of overruling Druse based N.W. this case Wis. 14; Kill be reversed and Horter, petition must re- Wis. 16 N.W. v. amended- only duly 133 N.W. trial before con-’ Meigs, 147 Wis. manded ingstad 1133; Ann.Cas.1912D, provided purpose, for that agency Williams v. stituted 424; Hastings namely court. Benton, v. Cun the circuit 24 Cal. *11 II, only heard the

By pertaining of the amended count evidence to a declaratory However, petition constructive plaintiff sought assuming a trust. plaintiff no in what judgment appellants had that should contends have designated lawsuit in the result of a different an “answer and terest as cross been petition” This pending court. contained sufficient federal district a statement separate cause of ac of a cause of action was a and distinct for a constructive day trust, the trial authority of action was court had no tion. On this cause part and almost refer that entire petition, a cause of action to made a ref- named eree for trial. two weeks before the defendants answer, trial court filed an therein The first two subsections-of Section 515.- a reference. that time there ordered At reference, pertaining compulsory of nothing at The nature issue. parties are as follows: “Where the do compulsory proceeding, refer as one for consent, so trial or of of otherwise, [to determined ence or is to pursuant the issues of fact referee a parties as from issues raised may, upon Section the court 515.010] the order of pleadings shown when application either, of of mo its own Hancock v. State reference -is made. tion, following- direct a in the reference Commission, 347 Mo. Highway (1) of cases: Where the trial an issue of 823; Co., Vannoy & v. Swift S.W.2d require fact shall the examination aof order of This Mo. 201 S.W.2d 350. side, long on account either which case premature, but if the issues reference was the referees be directed to hear and subsequently have authorized raised would issue, report upon decide the whole toor prejudice have no could re a reference question any specific this, However, of fact involved aft from fact alone. sulted therein; (2) taking Where of an er there was no issue the issues were made necessary shall be for the infor require account would fact the trial of. which court, judgment, account, mation of the before long the examination carrying judgment or order into In reference was not authorized. ** n .” effect; position Plaintiff’s is part of reversal of that situation a every embraces that the “whole issue” is judgment based on this cause of petition including within the all the sue ordinarily required. But as will would in each thereof. We have issues count judgment subsequently be noted a on the defining found no Missouri case “the pleadings, would have been authorized. in this statute. whole issue” as used How gained would be re Nothing useful ever, compulsory reference statute of manding this cause of action. is in substance of California State that Missouri. Williams the same as Appellants challenge next Benton, brought a suit was Cal. in count a referee all the issues before partnership and ob to dissolve count, petition. IV the amended This A the accounts. com tain a settlement of prior counterpart pleadings no The pulsory reference was ordered. fol petition. .filing the amended is Supreme lowing language Court of pleading contends true particularly point: “The California is Sup Separate “Answer entitled Joint compel power a reference court to .Cross-petition plemental of Defendants- * * * is derived from [the Dubinsky” been entitled “An .should have statute], and can be exercised reference * * * ”, . and Cross-Petition but swer The first only provided. therein sub as purport allegations therein did not the one of that relied division section equitable- up than set defense do more respondent authorizing by on petitions appellants. There the cross question, following and is order request specific for a constructive language, viz.: the trial of an ‘When issue trust, pleading reading of this would and a requires fact the examination of a long impart the idea a constructive requested. on either which being account side—in case the trust

921 trust court determined that no constructive may hear and de referees be directed to would issue, imposed, action report upon any should be further cide the or no whole However, required. if question be it determined specific fact involved therein’ of trust, (2) may impose The subsectiofi (cid:127) —a reference be ordered. word a constructive appoint- twice, in the of authorizes the ‘issue’ is used and each time Section 515.020 - number, purpose tak- singular other is of and no issue ment a referee determine, requires for the in- the ex ing mentioned than such as an account to * n account, judgment, long If amination *. the court before formation of action, earnings á con- property there be but one issue what imposed. The that issue involves the of. a should be examination structive trust account, may long purpose be sent subsection the -whole case of this second obvious * * * referee; however, If, we there situation provide to a for the exact is to case, involving here, are conceive other issues we cannot havé account, by long the examination ac- incorporated into the statute it was power compulsory to send court has no cident. them to referee for trial. The charac n n The support result here reached finds .may ter of issue which be referred is in the decisions other states. In Hilton described, and, by necessary particularly Hughes, App.Div. 226, v. 5 204, 39 N.Y.S. implication, answering to issues not 205, the equity. suit was in Plaintiff op description from the. are excluded chárged a fiduciary of a violation relation language eration of the section. ship prayed for an accounting and may refer all the issues not that the court affirmative, other relief. The court held action, nor that the involved that a reference of all is issues, may try directed- all the but sues was not authorized the statute and merely may try that he the whole issu.e— stated:' “The examination account of, say, already spoken the issue is to dependent upon determination and the reference which has been al question the relations of the whether ready Fredenhall v. authorized.” See parties principal were those of agent 719, Shrader, Cal.App. 188 45 P. 580 not; wrongful whether alleged acts Coates,. Bros., Inc., 211 Barker v. Cal. were committed the defendant or not. there are few Conceding 8. 297 P. The court should itself have determined general, which the Missouri cases in lan question, and, if its determination was implies guage that the whole cause of used require such as to such an 'accounting, the referred, are action cases might then order a reference to take of the issue in

wherein the determination account.” such See also O’Connor v. long volved account determined O’Connor, App.Div. 7, 308; 202 195 N.Y.S. lawsuit. Wasey, App.Div. Leigh v. 259 20 301; Selleck, App N.Y.S.2d v. 138 Starr pending In the cause of action for a 1054; 122 .Div. N.Y.S. Fisher v. Tut ques- constructive we trust have first the 673; tle, App.Div. 164 149 N.Y.S. 34 law, ap- tion whether or not under the 2f; C.J.S., Cyc.References Referenc § plied facts, plaintiff was entitled to 22b; es, § § Am.Jur.References equity impose have a court a construc- strange procedure is not This the Mis any property tive earnings'of trust on practice. See ex State rel. souri Webster appellants. way That issue in in- 781; Johnson, 132 Mo. S.W. v. long volved the examination of a account. Geist, 871; 155 Mo. Vette v. S.W. principal It was issue the cause of Boyers, Campbell 241 Mo. taking action and was not incident to the procedure 807, where that S.W. fol appellants long of a account. The were lowed. principal entitled to have this issue tried part judgment pertaining duly designated That constituted court a constructive imposition of trust the constitution and statutes for the to the cause of reversed and Assuming trial of must be such issues. court, each, outstanding stock the circuit of the total remanded trial before 25% by his *13 may, remaining being im- the stock owned which trust is if a constructive warranted, ap- that there posed, in children. The trial held its if court discretion was point (2) no four theaters. pursuant to subsection actual sale these of Section 515.020. contract, we When read the whole appeal Turning matters on now to the and the take into consideration reasons pe- pertaining original of the to the merits provisions, including for its various the (count petition) tition I of the amended pertaining one to “actual sales” the only assignment we find that of error the evidence, theaters, as disclosed and ruling is that court erred in not that also take into when consideration that

plaintiff made actual of all of the sales signed plaintiff contract was did not have theaters. No is contention made that the theaters, actual we title to five of the must by plain- amounts be owing determined to that there conclude was no intention that appellant tiff to each improper are if the plaintiff if did not title to the retain actual court reached the correct conclusion con- sale” remaining theaters “actual would an cerning question of actual sales. necessarily the contract occur. In fact transfer, provided plaintiff that the could operate handle the various theatrical execution of At the time of properties is obvious as he saw titles fit. 1946 the December the contract of separate “actual sale” the the use of term in three three were theaters parties only a sale mind which was of a fourth corporations the title beyond Durwood, plain would transfer theaters Stanley H. the name of plain management actual control make no reference Appellants tiff’s son. respect any to these occur in showing tiff. did not any testimony or exhibit This there was 'ex Although or in these titles four theaters. subsequent change in stocks, plaintiff and the corporate between ownership treme bitterness brothers, Dubinsky is evident in their it no briefs there is contention rely on Dubinsky were to We cannot deter brothers changes such occurred. pos plaintiff’s appellants could from executive man what benefit mine on basis four ability. As these last the agerial court erred in rul sibly contend that the aters, management, plaintiff retained actual there no actual sale of these ing that was record although he transferred title The titles to four other and theaters. four name, separate corporations plaintiff’s and the of the theaters were in theaters was a cor and transferred to another theater held beneficial title 75% children, previously ownership men to his he in fact re poration other than those opera transferred the titles of control of Plaintiff actual tioned. tained position in a to and the stock of did and all He was four theaters tions. these The trial the books and accounts of his children. corporation to make available this appellants’ Appellants con do contend with in accord these theaters. held of the transfers transactions constituted that reason that these tentions compensation ap not devote sales, any incentive or did his lost actual producing talents to accordingly. This an figured best efforts pellants only Only question he and his chil income therefrom. for determination leaves theaters, interest occurred actual sales of dren owned there of whether equal The titles theater- remained mem remaining four theaters. and each plaintiff’s Durwood “theater circuit.” name ber of the No theaters were to these Shortly ownership, entered signed. “stranger” into when the contract While plaintiff organized management new or control. four there is thereafter place that a question sale took corporations, he transferred the title one term, when the whole theaters a different cor sense of contract each of these president parties the intent of is Plaintiff was of each read is poration. consideration, the ownership into above corporation, and he retained of taken referred for, did transfers these four theaters further proceedings in accord with constitute an opinion. “actual sale” within the mean- this contract,

ing of that term as used appellants’ and as to these four theaters BARRETT, BOHLING and CC., con- compensation properly computed on cur. profits net period during earned employment. PER CURIAM. interesting to it connection *14 this filing the suit prior to note that The foregoing opinion by STOCKARD, actual position that an plaintiff took the C., adopted is opinion as the of the Court. occurred, theaters had of the sale some posi- opposite the appellants took the All concur. progressed litigation had

tion. After this completely quite side some time each for On Rehearing- Motions for Modify and to only significance position. The its reversed by this about-face is that attached PER CURIAM. had parties the auditors occurred after the books, plaintiff’s to examine started Plaintiff in contends mo his if there apparently it discovered that was tion for rehearing that Dubinsky ap- plaintiff would owe demanded, were actual sales ,the brothers never by a trial money if there were no pellants than more judge and therefore cannot raise this actual sales. question for the appeal. first time on original When the order of reference was -question pertains to the The remaining made, defendants, other than Com declaratory judg- action for a cause of merce Company, objected Trust thereto be per- This alleged in count II. action ment cause,the reference was by not authorized appellants in tained interest of Section 515.020. principal -We held in the proceeds separate« of a different opinion that the reference of counts III by brought Edward D. Durwood suit authorized,, and IV was not and the reason companies film for treble against certain prej that such unauthorized reference was damages alleged for violation of anti- objecting parties udicial was because thfe in Appellants admitted their trust laws. by the were denied a trial of the issues they had in no interest that answer that judge. In the answer to the amended of the an actual sale suit if been there had petition, where count. Ill n Roxy first so was des in count of the issues Theater. One ignated a and count IV was. first made been an actual was whether I tf\ere the defendants named theater, part petition, of the judge trial of that sale “protests found, preserved contention with the then two counts accord these record,” been appellants, that there had made objections heretofore Therefore, which,was II count sale. no actual author that one of there judgment have entered judge could motions for ity reference. In the for the pleadings, and that plaintiff on for that there was was contended new trial it based on count II judgment part of reference that the authority for the appellants have no interest in or that by to a trial “entitled movants were proceeds in- of the suit claim to referee, court, of the not before is court affirmed. federal is III and It tendered counts IV.” sues provides 515.010 it noted that Section also case judgment pertaining any issues of in an of the fact that all affirmed, is and for the I and II counts “upon referred written out, part hereinbefore set that reasons parties”, Section consent pertaining to counts III judgment provides reference without .for 515.020 reversed, two and the causes ac- IV only consent in three situations. written in said counts are remanded alleged tion terms”, irreconcilably opposed thereto in provide only meth- These two sections Fay, Mo.App. re- State v. Dalton may be & fact whereby any issue of od 1132, 1136, “express en- there S.W. ferred. is not contended implication”, actment or inexorable refer- writing to the any consent Williams, III Arnett v. in counts Mo. S.W. named defendants ence. The objec- principal opinion 1157. The throughout their preserved and IV theory based ground that a court on the reference tion to the 515.020, equity require at common did law by Section it was not authorized legislative authority be need whereby it could order a ref- nothing they did require- erence chancery to master in is- waived contended case, sue in a power but that now the writing. consent be ment that the in Missouri refer issues beep referee has expressly limited time for first contends Plaintiff also provided statute to situations au- rehearing that the in his motion .515, Chapter notwithstanding at the rule *15 suit thority refer of law, common adhere and we to that view. contained Section a referee is The other matters raised the motion for 1949, 1.010, That section V.A.M.S. RSMo rehearing require do not additional com- Eng- law of provides “The common that ment. parliament acts of statutes and land and all reign year prior made to the fourth Appellants have filed a motion First, which are of a gen- James opinion, to modify the they urge ** * repugnant nature, not eral objections their to venue should have been * * * with the consti- or inconsistent original petition sustained. When the state, statute laws or the tution of this objection was filed to venue was made for be rule being, time shall force for the petition the reason that the did not state state, any decision in this of action and against cause of action Commerce Trust contrary notwith- usage custom or petition Company and because did not general- as- but no act of standing, joint action against state a cause of all the held sembly state shall be law of this or objection first defendants. The was dis invalid, scope its limited in to be posed principal opinion. sup state, courts of this effect port objection appellants of the second cite may dero- the same be in reason that Thompson Terte, ex rel. v. 357 Mo. State with, of, gation or in conflict such common H. S.W.2d and State ex rel. C. 207 law, par- or acts or with such statutes Aronson, Company Paving Atkinson v. liament; general such but all acts cases, 1. These Mo. 138 S.W.2d laws, assembly, liberally shall be con- first, appear support ap reading, strued, as to effectuate true intent so pellant’s position, rel. but in State ex meaning Plaintiff ‘cites thereof.” Mo.Sup., James, Campbell S.W.2d v. Pine Lumber ex rel. South Missouri State question be court had this exact this Dearing, Company v. 180 Mo. 79 S.W. and held that in order to obtain fore it there stated that reason 454. It is jurisdiction pursuant and venue to Section courts are statute the circuit invested this 1949, V.A.M.S., 508.010, it was RSMo English powers with the Court requirement joint cause of action so those except powers Chancery far against be defendants. See also stated may been limited statute. Other have Goodman, Baker 364 Mo. State ex rel. v. powers can di- these cases hold S.W.2d 293. enactment”, express “by legislative vested point Appellants also out we did Kenney and to use State ex rel. on the that no cause Johnson, Mo.App. rule contention S.W.2d a, 858, 860, “directly in count IV of the legislative act stated Appellants suggest that to the-construc- also petition pertaining amended (cid:127) court. IV. court re-allocate in the trial that count costs- is recalled trust. tive should hearing This is a matter the trial court after first came into existence pass originally. on had been concluded. before the ques- procedure all unusual In view of this Respondent’s rehearing or in motion-for validity the re- than

tions other the court the alternative to transfer so that expressly not ruled ference ate appellants’ modify en motion to procedures banc trial court usual normal and followed. are overruled. pertaining count IV notes agreed would, brothers had that neither contract, paid all that was directly indirectly, thea- engage nor Dubinsky due to brothers and that cities, including trical business four St. met, part obligations on his had been Missouri, , Joseph, period expiring a. from that he entitled receive back