Davison v. Hough

65 S.W. 731, 165 Mo. 561, 1901 Mo. LEXIS 292

• Court: Supreme Court of Missouri
• Decided: December 3, 1901
• Status: Published

Opinion

VALLIANT, J.

Tins is an original suit for a writ to prohibit one of the judges of the St. Louis City Circuit Courjt from proceeding with a cause pending therein in which it is alleged the court has exceeded its jurisdiction. The cause in which the proceeding is sought to be prohibited is an equity interpleader suit, brought by the defendant, The Mutual Benefit Life Insurance Company, as plaintiff, against the plaintiff in this suit, and others, as defendants, alleging that as a life insurance company it had issued a policy for $5,000 on the life of one Livingston E. Davison who had since died, and the plaintiff was ready and willing to pay the amount of insurance to whom it might be rightly due, but that a controversy had arisen between the defendants, the widow, Mary C. Davison, claiming by assignment, the children claiming as beneficiaries, and the St. Louis Trust Company claiming as administrator of the estate, each denying the others’ claim and each demanding payment of plaintiff. The prayer of the petition was the usual prayer in such case, to the effect that petitioner be allowed to discharge its debt by paying the money into court and that the various claimants be required to come in and interplead for it. The bill of interpleader was filed June 22, 1901, returnable to the October term. Summons was served on the St. Louis Trust Company, administrator, June 25, and on Mrs. Davison and the other defendants June 27. The St. Louis Trust Company is a resident of St. Louis; Mrs. Davison, of Cole county; and the children, of Jackson county, and the writ was served in their respective places of residence. On June 24, Mrs. Davison brought suit in the Cole Circuit Court against the insurance company to recover' the amount of the policy, and service of summons was made that day; and on June 26, a like suit was brought in the name of the children against the insurance company in the circuit court of Jackson county, and the summons in that ,suit was served on that day. On July 10, the insurance company, as plaintiff in the interpleader suit, gave notice in writing to the defendants therein that it would on July 15 apply to a judge of the circuit court of St. Louis for an injunction to restrain them, respectively, from prosecuting, their suits, or instituting any other suit against it, to recover on that policy. The interpleader suit had-been duly assigned to Division No. 1 of the St. Louis City Circuit Court in which Judge Hough presided. On July 15, that division of the court was in session, it being .a day of the June term. The interpleader petition was then heard on its merits and the court announced that the case was made out and that a decree in accordance with the prayer would be entered, but not until the insurance company had paid the money into court as it offered in its petition to do. On a later day in the June term, July 22, the money was paid into court, and the decree entered enjoining the defendants therein from prosecuting the suits above named or' any suit against the insurance company on that policy, requiring them to interplead in that suit for the money in question, and discharging the plaintiff therein from further liability on that amount. The object of this proceeding is to prohibit the judge of the St. Louis court from exercising further jurisdiction in that case.

In the petition in the ease at bar, on which the rule to show cause was issued, it is stated that the petitioner in this case appeared in that case pursuant to the notice that an application for a temporary injunction would be made and for the purpose only of resisting that application, and that no general appearance was entered. This cause was submitted to this court on tire petition, returns and a stipulation in writing. In the stipulation is this: “2. That the facts stated in the return of the defendants herein as to matters occurring before Judge Hough on July 15, and July 22, 1901, respectively, and the statements of the judge and of counsel there made (which do not appear of record) are correctly set forth in said return; that notwithstanding the foregoing, plaintiff reserves the right and the same is accorded to her of objecting to the competency of said matters and statements, and to their sufficiency as constituting a legal return or answer to plaintiff’s petition herein.”

The decree of the court begins with a recital as follows: “Now at this day comes the plaintiff by J. Hugo Grimm, its attorney, and presents to the court its petition, verified by affidavit, praying for an order authorizing it to pay into court the sum of $5,000 and to require defendants to interplead for said fund and for an injunction against said defendants enjoining and restraining them from instituting or prosecuting any suit or suits against the plaintiff; and thereupon appear the defendants,” etc., naming each of them and the attorneys representing them, respectively. Then follows a recital to the effect that it was shown to the court that notice of the purpose to apply for an injunction was served on the defendants. That is all that the record of that court shows on the subject of appearance.

In the return of the insurance company it is stated that upon that occasion “all the parties to said suit appeared by counsel, and the different counsel having made their statements to the court, all agreeing that the interpleader suit, brought by the Mutual Benefit Life Insurance Company, had been filed on June 22, 1901, the suit brought by Mary C. Davison had been filed on June 24, 1901, and the suit-brought by Guy P. Davison and Elise Davison had been filed on June 26, 1901, and it being conceded that- the petition set forth the facts correctly, his Honor Judge Hough announced,” etc. In that return it is also stated that no objection to the jurisdiction of the court was then made except that that court could not enjoin the prosecution of the suit in Cole county; .and that after the court announced its conclusion to do so it was further objected that that injunction could not be granted without requiring a bond. The return of Judge Hough is substantially the same as that of the insurance company with the further statement that after the parties had all been heard the cause was submitted to the court for its determination, “all of said attorneys for said defendants not objecting to such submission but acquiescing therein.” Concerning what occurred in court July 22, that return says: “On said twenty-second day of July, 1901, the parties plaintiff and defendant were represented by their respective attorneys as before on said fifteenth day of July, 1901, and at said further hearing said attorney for said Mary C. Davison offered for insertion in the record of said cause a statement in writing.to the effect, according to tire remarks of said attorney, that his previous appearance in said cause was only for the special purpose of objecting to the jurisdiction of the court therein and that such appearance was not intended to be a general appearance in said cause. That upon said offering of said statement as aforesaid said attorney was told by the presiding judge of said division of said court, that he, said judge, had understood at the former hearing of said cause that he, said attorney, had made a general appearance for his client, Mary C. Davison, and same was not a special appearance. And said judge then asked said attorney: ‘Am I correct in such understanding V But said attorney did not answer said question, but withdrew his said request that said paper be made a part of said record, and said statement was not placed in the files of said court.”

The foregoing are substantially the facts on which the writ of prohibition is asked.

I. The jurisdiction of a court, in a case like the one in question, depends on two conditions: first, the subject-matter of the suit must be such that the court can lawfully pass judgment upon it; second, the parties must be before the court either by force of its process or by their voluntary appearance. As to the subject-matter, consent can not affect the jurisdiction, but as to the parties, it can. If the law does not confer on the court jurisdiction of the subject, consent of parties can not confer it. But parties whom the court has not reached or even can not reach by its process, may come in voluntarily and confer jurisdiction of their persons on the court. [17 Am. and Eng. Ency. of Law (2 Ed.), 1058-9.] Without voluntary appearance the court can not acquire jurisdiction of the person of the defendant until its process has been duly served and until the return day of the writ has arrived. Therefore, if the process is returnable to the October term, the court does not thereby acquire jurisdiction of the person before the October term, even though the process was served, as in this case, on the twenty-seventh of June before.

Under our law general jurisdiction both at law and in equity, is conferred on the circuit court. Therefore (leaving out of view for the present, section 3631, Revised Statutes 1899, which requires a suit to enjoin a proceeding at law to be brought in the county where such proceeding "is pending, and which we will discuss later), there can be no question of the jurisdiction of the' circuit court of St. Louis over the subject-matter of the interpleader suit. It certainly had jurisdiction of that kind of cases. And since one of the defendants lived in the city, and was served there, the summons for tho other defendants could go to the other counties in the State and the service on them in the counties of their homes, respectively, was due process. [Sec. 562, R. S. 1899.] But that summons called them to court at the October term, therefore the court by force of that process acquired no jurisdiction of their persons at the June term, still, the petition being regularly filed, the court had jurisdiction of the case and awaited only the bringing in or the coming in of the defendants. As the defendants might have come voluntarily without process, so they could come before the day required by tire summons, and wlien tliey came and entered their appearance there was nothing wanting to give the court full jurisdiction. Of course, if the court had been in vacation, the judge could not have proceeded to judgment; but the court on this occasion was in regular session at the June term. Did these defendants enter thc-ir appearance at the June term? That they were all present and took some part in the proceedings in court, is admitted, and the only one of them who now denies that she entered a general appearance is the petitioner, Mrs. Davison. In the face of the statements in the returns, which it is stipulated are true, we do not see on what that denial can be based. Indeed, we do not understand counsel for the petitioner in their brief to take the position now that the statements in the returns on that point are not true, but they say that we can not look outside of the record of the court to learn what really transpired. The plaintiff here is not in a position to argue in that way. She is asking extraordinary process for relief against a judicial proceeding which in her petition she says was conducted when the court in fact had no jurisdiction of her person, not merely that the court record erroneously fails to show the jurisdictional fact. It is true, as the learned counsel say, that a court speaks only by its record, but that is said of a court record in a collateral inquiry; it is not true that the verity of the record can not be impugned by parol evidence in a direct assault in a manner allowed by law. For .example, in this case, suppose when the parties appeared pursuant to the notice that an application for a temporary injunction would be made to one of the judges of the St. Louis Circuit Court, they discovered that instead of a mere preliminary proceeding, which might bo had before a judge in vacation, the plaintiff presented his case in an open session of court and asked a final decree on its merits, and the defendants had then and there said that they were not there for that purpose and had thereupon retired, and suppose then a decree had been entered reciting that the defendants had appeared and consented thereto, can there be any doubt but that in a proceeding like this the defendants could show what the truth was by parol evidence and prohibit the court from further proceedings based on that decree ? To hold the contrary would be to say that a court could so intrench itself in its own record as to be invulnerable to such an attack. If matters de hors the record can not be shown in such a case as this, why is a return called for at all: why not simply order the judge to send up his record, as in a writ of certiorari ? We are now dealing -with a question of fact — did the petitoner in this case enter 'her unqualified appearance in that case? The insistence is that we must look only to the writ which shows that she was summoned to the October term, to the notice of an application for an injunction, and to the judgment itself which shows that it was entered at the June term and fails to show that it was entered by consent and that we must shut our eyes to a fact that is solemnly admitted to be true, because that fact docs not appear on the court record.

A writ of prohibiton is not a writ of right; before it is granted, two things must appear: first, that the law sanctions it, and, second, that a sound judicial discretion commends it. [High on Ex. Rem., sec. 765; State ex rel. v. Levens, 32 Mo. App. 520.] Suppose the petitioner in her petition had said, “True it is I did enter my unqualified appearance on the fifteenth day of June, and in open court did admit the statements in the plaintiff’s petition to be true and consent that the cause be then submitted for the judgment of the court, but those facts are not shown by the record and without such showing the court had no jurisdiction, therefore, I ask a writ of prohibition.” If she had stated her ease in that form in her petition there would have been no rule to show cause based on that ground, yet that is substantially the argument now made to support it.

We must conclude, therefore, that the statements in the petition to the effect that the judgment or decree complained of were rendered before tbe plaintiff here had entered her general appearance there and therefore before that court had acquired jurisdiction of her person, are not sustained by the proof and that she is not entitled to the writ ashed for on that ground.

The argument is made that a judgment which appears on its face to be in inviium can not by parol evidence be shown to have been rendered by consent, and cases ai’e cited to sustain that position. [5 Ency. P. and P., 963; Gibson’s Suits in Chancery, 963.] For certain purposes that is so, but without inquiring whether it is so in a proceeding like this, it is sufficient to say that there is no attempt here made to show that this decree was rendered by consent, in fact the contrary is shown. The statements in the returns go to show that the cause was submitted for judgment by .consent, with the statements in the petition conceded to be true, but that the plaintiff in this suit insisted there that- that court had no jurisdiction to issue an injunction against her, not on the ground that she was not in court, but on the ground that the circuit court of Cole county alone had jurisdiction to enjoin the prosecution of a suit pending in that county, and it was also insisted that an. injunction as asked could not be granted without a bond.

But cui bono f Suppose we should find that the defendants in that case did not enter their appearance and should hold that the decree of' July 22, was void because the court had no jurisdiction of the persons of the defendants, what would be the result? • The cause is still pending in that court, the return day has now passed and the court undoubtedly has jurisdiction of the subject and of the parties. It being conceded that the petition of the interpleader is sufficient and that the statements are true, that court would be compelled to enter the same decree now that it did then, unless it should now be convinced that it has no jurisdiction to enjoin the suits in Cole and Jackson counties. But if that court in that event should be so convinced, it would, only leave the injunction feature out of the decree, but would be bound to render judgment otherwise on the case. If, therefore, the court should render a decree finding the facts to be as stated in the bill of inter-pleader and adjudging that upon the payment of the money into court the plaintiff be discharged from all liability to either and all of the defendants, and that they be permitted to inter-plead for the fund, what effect would that, have on the suits in Cole and Jackson counties? The decree would be a complete defense to either and both suits', even if there was no injunction. The money paid into court pursuant to the decree of interpleader is a full payment and discharge of that plaintiff’s obligation to each and all of the defendants growing out of the transaction stated in the bill of interpleader. An injunction would prevent only vexation.

II. The statute relied on by the plaintiff in this case (sec. 3631, R. S. 1899), is: “Proceedings on an injunction to stay a suit or judgment shall be had in the county where the judgment is rendered or the suit is pending, and the summons may be directed and served as summons in ordinary cases.”

If this statute has the effect that is claimed for it, it destroys the jurisdiction of courts of equity over bills of inter-pleader and renders suits of that character impossible except-when all the claimants to the fund happen to reside in the same county. A purpose to accomplish that result would have to be very clearly expressed to convince us that such was the intention of the lawmaker.

Suits to enjoin proceedings at law, under various conditions, form a distinct and important class in equity jurisprudence. [Story Eq. Juris., sec. 874, and following.] Bills of interpleader, though they may incidentally affect by injunction proceedings at law, are not within that class. In the case now under review, although there was an injunction granted, yet, as we have seen, it was a mere incident, not essential to the substantial adjustment of the rights of tire parties and of comparatively unimportant effect.

We are satisfied that section 3631 was intended to apply to suits coming within that class in equity jurisdiction above referred to which have for their main purpose tire annulling of a judgment or enjoining a proceeding at law, and was not intended to apply to a suit in which the jurisdiction in équity exists upon other grounds than that of affording relief by injunction, and when that relief is merely ancillary to the main object of the suit. This is the construction which courts of other States have put on their statutes of similar purport. [Baker v. Rockabrand, 118 Ill. 365; Hayes v. O’Brien, 149 Ill. 410; Beckley v. Palmer, 11 Gratt. (Va.) 631; Winston v. Coal Co., 20 Gratt. 686; Muller v. Bayly, 21 Gratt. 521.] That statute did not affect- the jiirisdiction of the St. Louis Circuit Court in tire suit in question.

III. The remaining question for our consideration is, did the court exceed its jurisdiction by granting the injunction without requiring a bond?

The statute (sec. 3637, R. S. 1899) requires a bond only when a preliminary or temporary injunction is issued. But in this instance the injunction issued on final decree. In an interpleader suit, when the court decrees that the plaintiff is entitled to pay the money into court and be discharged and the decree recites that he has done so and directs that the defendants interplead for the fund so paid in, that decree, as between the original plaintiffs and defendants, is a final adjudication of the cause of action stated in the petition. [Roselle v. Bank, 119 Mo. 84; Glasner v. Weisberg, 43 Mo. App. 214; State ex rel. v. Kumpff, 62 Mo. App. 335; 2 Daniel Ch. P. 1659, et seq.; 11 Am. and Eng. Ency. Law, 472, and cases there cited.] If the hearing of an interpleader suit is to be delayed and the plaintiff seeks a temporary injunction to stay suits until his case can be heard and determined, then he would have to give bond as the statute last above referred to requires. But on final decree no such bond is required; the claimants who. are enjoined are amply protected by having the money paid into court for them.

The plaintiff’s petition is not sustained by the proof, and, therefore, the writ of prohibition is denied.

All concur, except- Marshall, J., who concurs in paragraphs I and III, but dissents from the views expressed in paragraph II.