Peltzer v. Gilbert

169 S.W. 257, 260 Mo. 500, 1914 Mo. LEXIS 130

• Court: Supreme Court of Missouri
• Decided: July 14, 1914
• Status: Published

Opinions

BROWN, J.-

— Action to restrain defendants‘from auditing and causing to be paid out of the county treasury certain expenses in a criminal case.

The plaintiffs bring this action in equity as taxpayers of Jackson county, to enjoin the defendants as judges of the county court of that county from auditing, allowing and causing to be paid out of the public funds of said county the sum of $15,000, which defendants are threatening to expend in defraying the cost of bringing into this State numerous physicians and other persons to be used as witnesses on behalf of the prosecution in the case of State v. B. Clark Hyde, charged with the crime of murder in the first degree. Plaintiffs also ask that defendants by mandatory injunction be compelled to restore to the treasury of Jackson county the sum of $8,974.04, which it is charged they have heretofore audited and caused to be expended from the public funds of said county in securing expert witnesses, and for other services, in a former trial of said B. Clark Hyde upon the same charge which is now pending against him.

Plaintiffs do not charge that defendants have acted fraudulently or corruptly in causing the public funds of said county to be paid out in defraying the expenses of the trial of said case of State v. Hyde; nor in the threatened expenditure of other moneys in that behalf, but the gist of their complaint is that there is no law empowering defendants as such judges to audit and cause such expenses to be paid; and that while defendants would be personally liable for causing such an unlawful disbursement of public funds, the right to sue for such misappropriated funds “resides with the county” and plaintiffs will possess no individual right to maintain an action or actions at law to recover such funds for the county after they have been unlawfully audited and disbursed.

The particular order entered by defendants regarding future disbursements of which petitioners complain is predicated upon a letter written by the prosecuting attorney of Jackson county, which letter and the order made pursuant thereto are as follows:

December 18, 1913.

To the Honorable County Court of Jackson County, Mo., Kansas City, Missouri.

Gentlemen:

I am submitting this letter to you in pursuance to our conversation of yesterday relative to the financing of the coming trial of the State of Missouri versus Hyde.

Of course it is impossible for me to definitely state how 'much money will be required to try this case, since that is altogether regulated by the length of time which the nurses and experts and other witnesses from outside the State remain in Kansas City. During the last trial one expert in particular, Dr. Wesner, was in Kansas City for several weeks, and I am hoping that no such condition will arise this time. This would materially cut the expenses in this case. However, for expert testimony and the bringing of a large number of witnesses from all parts of the United States I estimate that $15,000 will cover the expenses of this trial.

Of course I am not asking for any money to be placed in my hands — only the right to get these people to come here and to have them paid by the court. I want no funds of any character or description to be placed in my hands. I will say this to the court — that I shall be as economical as possible in the trial of this case, and it will please me probably more than any one else if the expenses of this trial can be greatly reduced.

Trusting this letter meets your requirements and you can each of you vote to allow the funds to try this very important murder case, I beg to remain,

Respectfully yours,

Floyd E'. Jacobs.

ORDER.

This cause now coming on for hearing the court orders, by unanimous vote, that in compliance with the above communication from the county prosecuting attorney dated December 18, 1913, requesting this court to pay out of the general funds of Jackson county, Missouri, the expenses [estimated by said prosecuting attorney at not to exceed fifteen thousand dollars! for the payment of expert witnesses and the expenses of bringing a large number of witnesses to Kansas City, Missouri, from different locations in the United States for the trial of the case of State of Missouri v. B. Clark Hyde, that said expenses be paid out of the general funds of the said county upon the presentation to the court of said bills approved by the prosecuting attorney.

The defendants by answer assert that the money which they intend to disburse 'out of the public funds of Jackson county is a necessary expenditure to procure the attendance of witnésses residing outside the State of Missouri. That said witnesses have made a chemical analysis of the stomach and other vital organs of one Thomas H. Swope, the person who it is charged was murdered by B. Clark Hyde. That the presence of such physicians and other non-resident witnesses is necessary to prove the charge which the public prosecutor has preferred against said Hyde. That the public prosecutor has no authority to compel the aforesaid non-resident witnesses to attend the trial of said B. Clark Hyde, and cannot procure their attendance in any way except by paying them a reasonable sum for their time to be consumed and expenses to be incurred in attending said trial. For further answer defendants admit that plaintiffs are taxpayers of Jackson county, but assert that the amount of taxes which plaintiffs have paid and the amount which they might have to pay towards defraying the expenses complained of would not amount to more than three cents each; and that such amount is so trivial that the court ought not to take jurisdiction of the cause and grant the relief prayed for.

Pleading. All the evidence introduced by defendants quite clearly demonstrates that they are seeking to defeat this case by showing that plaintiffs are not prosecuting the action in good faith to prevent the unlawful disbursement of public funds; and that the chief purpose of the action is to impede or render impossible the successful prosecution of B. Clark Hyde. It is true that the asserted improper motives of plaintiffs, and the alleged fact that they did not come into court with clean hands, are not pleaded by defendants. It would have been more in harmony with the rules of good pleading for defendants to have specifically challenged the motives of plaintiffs in their answer filed herein, but the general rule seems to be that the improper motives or misconduct of a plaintiff which would prevent him from securing relief from a court of chancery may be shown during the trial of the cause without being pleaded at all. [16 Cyc. 148; Creamer v. Bivert, 214 Mo. 473, l. c. 485; Houtz v. Hellman, 228 Mo. 655, l. c. 671.]

We will now review the evidence which tends to prove the motives of the plaintiffs and their attorneys in prosecuting this suit:

In the trial of this cause it was shown that plaintiff Peltzer paid to Jackson county, through its collector, taxes aggregating $16.25 for and during the year 1912, and that plaintiff Bowling paid to said county sixty-one cents for the same year. Roland Hughes is the principal attorney for plaintiffs in the prosecution of this action. The firm of Johnson & Lucas and one Cleary were some of the attorneys employed by B. Clark Hyde to defend him against the before-mentioned charge of murder.

To prove that this suit was brought and maintained at the suggestion and expense of the attorneys ' of B. Clark Plyde, or for the benefit of said Hyde, the defendant introduced one James W. Broaddus, who-testified as follows:

“My name is James W. Broaddus. I am an attorney, have been since last June. My office is with my grandfather,- E. J. Broaddus, formerly judge of the Court of Appeals in-this district, at 1305 Commerce building. I know where Plughes & Whitsett’s office is on the same floor with ours. Mr. 'Plughes uses our Bell phone once in awhile.

“Q. I will ask you whether or not Mr. Plughes came in there a few days ago and had a conversation in which he called up Johnson & Lucas.’s office? A. Monday afternoon, the 12th of this month.

“Q. What was said, if anything? What was said in that conversation, the first thing that was said?

“Mr. Hughes: We object to that conversation as-immaterial and irrelevant.

‘ ‘ The Presiding Judge: The objection will be sustained.

“ (Here followed an argument between counsel and court as to the admissibility of this evidence.)

“Whereupon the presiding judge said: This testimony will be admitted in view of the fact that testimony along the same line was let in without objection on your part at all, and it might be deemed in the way of impeachment of former testimony.

“To which ruling and action of the court the plaintiff and each of them then and there duly excepted and still except.

“ Q. What was the first thing done by Mr. Hughes when he came into your office? A. This kind of embarrasses me. I didn’t intend for this to happen. This is all I know about it. He came in there Monday and took the telephone and called up and said, ‘Is this Johnson & Lucas’s office?’ He said, ‘I would like to speak to Judge Johnson.’

“Q. Who said that? A. Mr. Hughes. He said, ' ‘ This is Roland Hughes, Roland Hughes talking. ’ Then he said, ‘Peltzer informs me that there has been no arrangement made in regard to my fee in this matter, ’ and he said, ‘I would like to know about it.’ Of course, ordinarily, I don’t pay any attention to those things, but there had been so much of this in the newspapers that it just attracted my attention to that. Mr. Hughes listened and pretty soon said, ‘All right,’ and that is all I know about it. I told Mr. Hughes this morning that I had been subpoenaed. I wanted him to know about it. I told him what I would testify to. He said he had some recollection about saying something. He did not say he said it, he said he had no recollection of saying it, he admitted he came in there, and asked me what I remembered and I told him just what I have told here.

“ Cross-examination by Mr. Hughes.

“Q. What did I tell-you about it after you told me? A. You said you had no recollection about that.

“Q. No, what did I say about testifying to the conversation? A. You said, Go ahead; you. said you didn’t care. You said, ‘All right.’ I wanted you to know it before I got on the stand. I told Mr. Jacobs last night I wanted to see you first.”

After witness Broaddus had testified, W. T. Johnson .was called by plaintiff and testified as follows:

“My name is W. T. Johnson, I am an attorney, for B. Clark Hyde, charged with murder, and have been since the beginning of the suit.

“ Q. I will ask you whether or not Roland Hugfies called you up on the 12th day of this month, last Monday, at your office in this city, and talked to you about his fee from Mr. Peltzer in this injunction suit? A. He did'not.

“Q. He never said a word to you? A. No, sir.,

“Q. Neither one way or the other? A. No, sir.

“Q. I will ask you if he didn’t call you up and ask you about why he was to get his money from Peltzer? A. He never did.

“Q. Never at any time or on any occasion? A, No, sir.

“Q. Never said a single word to you? A. No, sir.

“Q. Did you ever discuss the fee with him at all? A. No, sir.

“Q. Did you ever have an automobile ride with-him in which you discussed the fee with him? A. I did not.” . .

Roland Hughes, attorney for plaintiff, did not testify after Broaddus gave the evidence hereinbefore quoted. However, Mr. Hughes was called by the plaintiff before Mr. Broaddus was sworn,- and, when interrogated regarding any conversation. he had had with-W. T. Johnson (attorney for Hyde) about this suit, testified as follows-:

“Q. Have you ever talked with Judge Johnson about this matter, J. M. Johnson? A. I don’t think I ever did.

“Q. I mean W. T. Johnson? A. Yes, sir.

"Q. When did you talk to Mr. Johnson about the matter? A. Oh, I don’t know. T expect it was last summer sometime.

"Q. When did you talk to him last? A. I don’t know whether it was yesterday or the day before.

"Q. You know he is attorney for Dr. Hyde? A. I know he is so reported in the newspapers. . . . I think I was in the court room one day when that trial was going' on. I do not think I have discussed with him the fact he was attorney or in any way connected with that matter.

"Q. Would you say you have not in any phase? A. You mean in connection with this suit?

"Q. Yes, sir. A. No, I don’t think so. ... .

"Q. Did you talk to him about Mr. Peltzer? A. No, sir.

"Q. Have you ever had any conversation with him about Mr. Peltzer? A. Well, I don’t know, I think I have since this suit was brought.

"Q. When? A. I don’t know. Since this suit was brought.

"Q. Where? A. Let me see if I can recall that. I don’t know whether I met him on the sidewalk or called him up over the telephone. I called him up probably by telephone once.

"Q. Where were you? A. Probably in Judge Broaddus’s office, because I have no telephone that connects with his office. He uses the Bell ’phone.'

"Q. You haven’t the Bell ’phone? ' A. No, sir. Judge Broaddus’s office is probably 150 to 200 feet from my office on the same floor.

"Q. Do you use that Bell ’phone frequently? A. Not frequently, but occasionally.

‘ ‘ Q. Have you any distinct recollection of calling up Judge Johnson relative to this matter over the Bell ’phone in Judge Broaddus’s office? A. It is not very distinct. I think I did, though.

“Q. Have you any recollection whatever of talking to him about Mr.-Peltzer? A. I think so.

“Q. When was that? A. Well, that was probably- — this is Friday, isn’t it?

“Q. Yes. A. I wouldn’t be positive about the day, but it was probably Monday or Tuesday evening after this suit was brought. I rode home with him in an automobile.

“Q. Have you a recollection now of that? A. Yes, sir.

“Q. And you have a recollection of a conversation relative to Mr. Peltzer? A. I think so.

“Q. Well, have you or not? A. What I mean is that while we rode home something was said about Mr. Peltzer.

“Q. What was that? A. I couldn’t tell you now what was said.

“Q. Don’t you know? A. No, I don’t think I do.

“Q. I will ask you if you discussed with him at-that time the question of your fee from Mr.«Peltzer? A. No, sir.

“Q. Are you positive of that? A. I think I am positive that we did not discuss any question as to Mr. Peltzer.

“Q. I didn’t ask you that; I asked you if you discussed the question of a fee from Mr. Peltzer with Judge Johnson in his automobile? A. That is what I understood the question to be. Judge Johnson, as I started home, came from his office, and his automobile was standing at the curb, and he invited me to ride home with him, and I did, and we talked about this case, and I don’t know, it may have been in that conversation, I wouldn’t be positive about it, that something was said about the fee, and I said to Mr. Johnson that whatever compensation came to me it would have to come from my clients. . . .

“Q. How did you come to be discussing this matter of your fee in this case with Judge Johnson? A. Oh, I don’t know, just like lawyers riding along and talking about everything.

“Q. How did you come to talk to him about such a matter? A. I don’t know. I couldn’t tell you that. That is a psychological question. I can’t answer that question. I am not an expert. . . .

“Q. Did the fact that Judge Johnson was an attorney for Hyde have anything to do with your discussion of that fee? A. I think not.

“Q. Will you say it did not? A. No, sir.

“Q. What would you say about it? A. I don’t know what prompted the conversation in his mind. I couldn’t say.

“Q. I am talking about your mind. You are the man that told him about the fee. A. About how that conversation came up?

“Q. Did he suggest the question of the fee, or did you? A. I don’t know. ...

“Q. I want to. call your attention to a certain conversation and ask you if it transpired a few days ago, where you went in the office of Judge Broaddus, formerly judge of the Court of. Appeals in this district, and took their Bell ’phone and called up the. office of Johnson & Lucas? A. I think I told you I did that.

“Q. I will ask you whether or not when you got that number you asked for Judge Johnson to come to the phone? A. I don’t know.

“Q. Will you say whether you did or did not? A. No, I won’t.

“ Q. You won’t say you did and you won’t say you didn’t? A. I won’t say that I didn’t, and I don’t have any recollection now of asking that question.

“Q. I will ask you if you finally di,d get Judge Johnson on the phone? A. I told you-1 thought I talked with him over that phone.

“Q. I will ask you if you made a statement of this character to him: That you were getting skittish about your fee from Peltzer? A. No, sir. I never used any such word as that to Judge Johnson or anybody else.

“Q. I will ask you if you said anything over that telephone to him relative to your fee from Peltzer? A. I don’t know. If I did, it was something like this, that no arrangement had been made with Mr. Peltzer about my fee.

“Q. . Why did you call Judge Johnson up and why did you say that to him over the telephone? A. I don’t know. I have no distinct recollection now of why I said it.

“Q. Isn’t it a fact that it was because he was the attorney for Hyde and because -he was involved in the bringing of this injunction suit? A. Not at all.

“Q. • You say that had nothing to do with it? A. He was not involved in the bringing of this injunction suit any more than you were.”

Mr. Hughes further testifying stated that he could not recall having transacted any legal business with Mr. Peltzer before bringing this suit; that when Mr. Peltzer called he (Hughes) stated that, he would be glad to bring the suit if Peltzer had some reputable 'taxpayers to join in it. That he had talked with plaintiff Bowling about the suit and knew Bowling’s feelings in the matter. That he called Bowling over the phone and the latter consented to the suit being brought in the name of Peltzer and Bowling, whereupon the suit was instituted without any. understanding with plaintiffs about paying any attorney’s fee. That two days after the suit was brought plaintiff Peltzer called witness Hughes to his office, paid him $100 and asked him what his fee would.be, and witness replied that he (Peltzer) “could fix that to suit himself.”

Mr. Bowling, one of the plaintiffs, testifying in his own behalf, gave evidence regarding the attorney’s fee and expenses of this suit as follows:

“Q. When did you first talk with Mr. Peltzer relative to bringing this injunction suit? A. I have not talked with him at all. I haven’t talked with him at any time or any place. . . .

“Q. Who have you talked to about this suit? A. Nobody. Mr. Hughes called me up over' the phone to know if I would allow my name to be used in connection with Mr. Peltzer. . . .

“Q. Are you paying Mr. PIugh.es his fee for this injunction suit? A. No, sir. . . . I know Mr. Johnson, have known him a good many years. I knew his father. He has never discussed this matter with me. I do not know who is paying the expenses, attorneys’ fees and costs in this proceeding. I don’t know a syllable about that in any form or shape. I never heard anything about it at all. . . .

“Q. Haven’t you a pretty clear recollection of what he said to you when he called you up and asked for the use of your name in this extraordinary proceeding ?

“Mr. Hug’hes: Plaintiffs object on the ground that it is not an extraordinary proceeding. It is as common as a suit on a promissory note.

“The Presiding Judge: The objection will be. overruled.

“To which ruling and action of the court the plaintiffs and each of them then and there duly excepted and still except.

“A. I think I am pretty clear as to what transpired between me and Mr. Plughes at the time he called me up and asked for the use of my name in this proceeding.

“Q. Well, then, did he say to you that you would not have to pay him an attorney’s fee? A. No, sir.

“Q. Did yon ask him if you would have to pay him an attorney’s fee? A. No, sir.

“Q. Did he say anything to you about these costs devolving on you? A. I don’t remember that he did.

“Q. Will you say that he did not? A. No, sir; I don’t believe he did, though. I don’t think I am quite clear on that, just what he said, if he said anything.

“Q. Do you expect to pay a dollar of costs in this case, if the costs'devolve upon you to pay?

“Mr. Whitsett: We object to that.

“The Presiding Judge: Overruled.

‘ ‘ To which ruling and action of the court the plaintiffs and each of them then and there duly excepted and still except.

“A. I am not informed about that. I may . . .

“Q. Do you expect to be reimbursed in the event, you have to pay costs? A. I would hope so; I don’t know. I don’.t know where it would come from.”

Further evidence of plaintiff Bowling is to the effect that he is a neighbor and friend of attorney Hughes, and has employed said Hughes in other litigation.

Plaintiff Peltzer, called as a witness by defendants, stated that, being of the opinion that the payment of the expenses in the Hyde case by Jackson county was illegal, he called upon attorney Cleary, whom he had frequently employed, and Cleary stated that he could not bring the suit to enjoin the county court because he was Mr. Hyde’s attorney. He then asked Mr. Cleary about going tó Hughes,, and Cleary said “all right;” that he then went to Hughes, mainly because the latter had once been prosecuting attorney of Jackson bounty. Plaintiff Peltzer said that two days after this suit was brought he asked Hughes what his fee would be, and the latter said he thought that $250 would be reasonable. Witness thought that amount “would be clear out of the road,” but agreed generally to pay a reasonable fee.

Plaintiff Peltzer stated that he had no understanding with Mr. Oleary, Johnson & Lucas, or any other attorney for Hyde, about paying the costs of the suit; that he did not expect to get anything out of the case whether he won it or lost it. Witness was asked if he knew any reason why Mr. Hughes should call up Judge Johnson of the firm of Johnson & Lucas and ask him in relation to the attorney’s fee in this case, and he replied that he did not. •' .

OPINION.

Injunction to Enjoin County Court from Paying Costs of Suit. Does the foregoing constitute substantial evidence that this suit was not brought in good faith to prevent an unlawful disbursement of the public funds? Was it instituted or maintained to impede the prosecution of Hyde? If not prosecuted in the name of the real party in interest, or if the party or parties who caused it to be instituted are proceeding from improper motives, then the action of the trial court in dismissing their petition should be affirmed. As nearly all the evidence introduced bears upon this point, we have deemed it proper to consider that issue .before approaching the more complex and difficult questions arising on the sufficiency of the petition to support the relief demanded. If plaintiffs are not the real parties in interest, or if the protection of their interests was not the chief purpose of the suit, then it will be unnecessary to consider the sufficiency of the petition.

The necessity of good faith on the part of plaintiffs in prosecuting an action in chancery is announced by Mr. High in his treatise on the law of Injunction (4 Ed.), vol. 2, sec. 1302, p. 1317, as follows:

“Taxpayer must sue in good faith. The general rule, as stated in the preceding sections, is also to be understood as limited to cases where the action is instituted by the taxpayer in good faith, and for the protection of his own interest. And where a taxpayer seeks to restrain an alleged waste or injury to the property of a city, equity will not extend him relief when it is shown that the action is not brought in good faith for the protection of his own interest, but that he is merely a colorable plaintiff, suing in behalf of other parties in interest.”

In harmony with the views of Mr. High, it was held by the Supreme Court of New York in the case of Hull v. Ely, 2 Abb. New Cas. 440, that a taxpayer could'not-enjoin the sale of a ferry franchise owned by a city where it was shown that the principal purpose of the suit was to enable other parties, at whose instance the suit was instituted, to enjoy the benefits of the ferry franchise while it remained the property of the city. . That action was one at law which authorized injunctive relief to a taxpayer in a suit to stay waste by the city, but the court ruled that plaintiff was not entitled to relief either at law or equity.

The last-quoted decision was approved in Kimball v. Hewitt, 17 N. Y. St. Rep. 743, l. c. 745, where it was appropriately said by Van Hoesen, J., that “in all applications of this character it is the 'duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end.”

While approving, in a general way, the doctrine of these cases, it is not necessary for us to take the extreme ground which they announce. Those actions were on a right expressly given by a statute, but the suit at bar rests only on equitable principles, and the doctrine that one who demands this extraordinary writ must come with clean hands and proceed from honest motives to protect Ms own interests applies with special force. Following the rule announced by High, we hold that, if the chief purpose of this suit was to impede the prosecution of Hyde, the judgment should be affirmed.

Coming back to the facts of this case, it appears that plaintiff Bowling had paid sixty-one cents into the public treasury of Jackson county, and might be injured a few cents by the alleged misappropriation of part of the public funds. Pie only became a party plaintiff at the request of attorney Hughes for the ostensible purpose of giving the cause a better appearance; it being the expressed desire of the latter that several taxpayers should join Peltzer in the action. We think, under the admitted facts, that Mr. Bowling’s interest in this suit may safely drop out of view altogether.

Mr. Peltzer, the principal plaintiff, has testified quite positively that he alone is responsible for this action and the attorney’s fees for prosecuting same; but notwithstanding its unequivocal character his testimony is not convincing.

A taxpayer injured only to the extent of a few dollars or a few cents, and desiring to bring an action of this character, is a man who usually counts the cost of every outlay and expends no more money on anything than is necessary. According to Mr. Peltzer’s testimony he was very desirous to know just what Mr. Hughes’s fee would be, and according to the testimony of Mr. Hughes there were many people who thought this action ought to be brought — hundreds perhaps. Tet Mr. Peltzer does not seem to have invited anyone to join him and bear part of the burden of the action. On the contrary, like Don Quixote, he rushed single-handed to the relief of the supposed victim (in this case the public treasury). This conduct is so out of the ordinary as to cast much discredit on the evidence and motives of Mr. Peltzer.

While attorney Hughes had a perfect right to bring and prosecute the action for Mr. Peltzer, the undenied and unexplained evidence of Mr. Broaddus, who seems to be about the only disinterested witness in the case, points quite strongly to the fact that Mr. Hughes depended upon the firm of Johnson & Lucas (Hyde’s attorneys) to pay or look.after the payment of his fee. Peltzer testifies that he knows no reason why Hughes should call Johnson & Lucas in regard to his (Hughes’s) fee in this case. Johnson swears unequivocally that he never at any time talked with Hughes about the attorney’s fee in this cause. On the other hand Hughes admits the conversation at the time referred to by Mr. Broaddus, but, when interrogated about the matter, Mr. Hughes tries to minimize its importance by forgetting what was said.

This suit was instituted on January 10, 1914; the conversation which Broaddus heard between Hughes and somebody took place on January 12th,- and the cause was tried on January 17, 1914, just seven days after it was filed. It is surprising, indeed, that Mr. Hughes should forget so many things within such a short time.

Peltzer says that two days after the suit was filed Hughes wanted an attorney’s fee of $250, while Hughes states that when asked what his fee would be he told Peltzer to “fix that to' suit himself.” Mr. Hughes seems to have forgotten most everything which moved him to bring and prosecute this action. Upon the whole case, as charitable a view as we are warranted in taking of his evidence is that some one interested in the defense of Hyde instigated or employed him to institute this action, and the fact of such employment has simply fallen out of his memory. At any event, he seems never to have voluntarily asked any one about his fee, except someone in the office of Johnson & Lucas (attorneys for Hyde).

The testimony of Judge Johnson regarding the telephone communication had -within the hearing of Broaddus may be correct. Broaddus could not tell with whom the conversation was conducted — he only knows that Hughes called for Judge Johnson of the firm of Johnson & Lucas, with the avowed purpose of finding out about his fee in the Peltzer matter. It may be that some other representative of B. Clark Hyde in that office replied, agreeing to pay Mr. Hughes’s fee, and that such agreement caused Mr. Hughes to terminate the conversation by the words, “All right.” Peltzer says he knows no reason why Hughes should call Johnson & Lucas for information about his fee in this case. The only natural inference is that someone connected with the office of Johnson. & Lucas agreed in that conversation to pay Mr. Hughes’s fee.

The writ of injunction is not a writ of right, but a writ of grace and discretion, and should only be issued when the chancellor is convinced that a proper case has been made. [Johnson v. Railroad, 227 Mo. 423, l. c. 450.] The application for this writ cannot appropriately be compared to a suit upon a promissory note, as appellants’ learned attorney seems to think. Not only should everyone who applies for this extraordinary writ come into court with clean hands and honest motives, but his motives being a matter peculiarly within his own knowledge, and, when, as here, defendant’s good faith is challenged, he should be able to furnish convincing evidence that the action is not maintained primarily to promote some improper purpose.

A careful and painstaking review of the record convinces us that the trial court possessed very substantial evidence that the bringing of this action was primarily for the purpose of impeding the prosecution of B. Clark Hyde, and that the alleged illegal disbursement of public funds was only an unimportant factor in causing the action to be instituted.

The' judgment of the trial court dismissing plaintiffs’ bill should be affirmed.

Graves and Bond, JJ., concur in the views expressed in this opinion. However, a majority of the court not concurring the judgment of the circuit court is reversed and the cause remanded by an opinion per curiam.