St. Louis, Cape Girardeau & Fort Smith Railway Co. v. Holladay

33 S.W. 49, 131 Mo. 440, 1895 Mo. LEXIS 93

• Court: Supreme Court of Missouri
• Decided: December 3, 1895
• Status: Published

Opinion

Sherwood J.

This cause originated in Wayne county and was begun November 6, 1890. The ostensible object of this proceeding was to restrain defendant Holladay from collecting a judgment for the sum of $1,630, recovered by him in the Wayne circuit court in October, 1890, against the plaintiff company, as garnishee of Flaherty & Deavignon, who it seems were contractors on plaintiff’s road, and to whom plaintiff owed that sum. The other defendant, Johnson, is the sheriff of Wayne county. The petition admits that judgment was rendered against it on garnishment process in manner as above said; but there is no intimation, pretense, or excuse in the petition to the effect that any attempt was made by the garnishee plaintiff to plead some of the matters edalleg in the petition to be true, and which if true and had been pleaded, would have prevented any judgment from going against the incorporated garnishee.

Ás the garnishment judgment was suffered to go without any plea or proof to arrest its progress, of course it would be contrary to fundamental principles to permit questions settled by that judgment to be reopened and reagitated in a subsequent proceeding, without some allegation sufficient on proof thereof to overcome, restrain, or set aside any other judgment at law. Shelbina, etc., Ass’n v. Parker, 58 Mo. 327, and cases cited.

The petition in this case, is indeed a nondescript; it is filled with a mass of irrelevant matter wholly foreign to the mere purpose of enjoining the collection of the judgment mentioned; seeks an accounting on matters entirely extraneous to, .and independent of, the garnishment judgment;, asks a recovery in the sum of $5,000; and seems to have been framed, adapted, and designed to speak thus of its chaotic allegations, with the sole purpose of delay in view. To this petition appear the names of Wm. Carter and Wilson & Whitelaw, as attorneys, and it is sworn to by Louis Houck as president of the corporation.

Plaintiff company gave bond and obtained a temporary injunction, restraining the collection of the judgment. Defendant Holladay, at the March term, 1891, filed an answer to the petition, claiming that plaintiff owed him $17,800 over and above the judgment aforesaid ; denied theprincipal allegations of the petition, and. sought to recover judgment for the amount thus claimed, and upon this filed his motion to dissolve the temporary injunction, which motion does not appear to have been acted on. After the answer of defendant had been filed, the parties agreed of record that the cause should be passed to the June adjourned term, 1891, for trial. At that term, plaintiff applied for and obtained a change of venue from Wayne county and from the twenty-sixth judicial circuit. The application therefor is in effect the following:

First. Undue influence of the adverse party over the mind of the court (Judge Jas. F. Green) is charged, and the allegation made that it can not have a fair and impartial trial on this account. Second. It is alleged that a fair and impartial trial can not be had by plaintiff in said county of Wayne, because the inhabitants of that county are prejudiced against it, the applicant railroad company. Third. Because the opposite party has an undue influence over the inhabitants of Wayne county, and therefore the petitioner can not have a fair and impartial trial.

This application is signed by Wm. Carter, Wm. H. Miller, and M. R. Smith, as attorneys, and is sworn to by Edward F. Blomeyer, general superintendent of the plaintiff corporation on June 3, 1891, at Cape Girardeau, before Rudolph Bohn, notary public.

The cause being sent to Carter county in another circuit, at the October term, 1891, of that court, the parties by entry of record agreed that the cause should be continued till the fourth Monday in January, 1892, and be tried at Poplar Bluff, Butler county, Missouri, and the judgment to be rendered therein in term time in Van Burén, Carter county, as early as convenient thereafter, but no such trial took place.

In June, 1892, plaintiff filed an amended petition in the Carter circuit court, and on the same day defendant Holladay filed Ms answer thereto. Neither the amended petition, nor defendant Holladay’s answer differs in any material respect from their predecessors in pleadings, and the petition is signed by Wm. Carter, W. H. Miller, and M. R. Smith, and is sworn to by LoMs Houck, as president of the plaintiff corporation, on the twenty-sixth of January, 1892, though not filed till nearly four months thereafter.

Soon after • the amended petition and answer thereto were filed, towit, in June, 1892, as shown by the ■ testimony of E. P. Settle, one of defendants’ counsel, M. R. Smith, one of plaintiff’s counsel, was permitted by -consent off said counsel to take said papers away with him from Carter county, and he, Settle, had never seen said papers since, nor could the clerk of the court, Coleman, find said papers after diligent search for the same, and said clerk had not seen said papers since June, 1892.

At the October term, 1892, of the Carter circuit court, by agreement of parties, the cause was continued, presumably to the next term thereafter. The October term, 1893, of the Carter circuit court began on Monday, the second day of that month. Moses Whybark, who had been employed on the twenty-seventh of September, 1893, as additional counsel in this case on behalf of plaintiff, arrived in Yan Burén at about 3 o’clock in the afternoon off Monday., October 2, from Cape Girardeau, where Louis Houck, the president of the plaintiff railroad, resides. Whybark, who lives in Marble Hill, Bollinger county, on Sunday afternoon the first of October, set out from his home and took a train for Cape Girardeau; why he went there, or whom he went to visit, his affidavit does not tell us; but at any rate he went there and remained there all night. On Monday morning, early, he took the train, and reached Yan Burén at 3 o’clock in the afternoon of Monday, October the second, as already related, on the first day of the term.

On his arrival, Whybark’s first care was to file a motion on behalf of plaintiff for a rule on Louis Houck, president as aforesaid, to show cause why he should not be made a party to this proceeding. This motion was signed by Miller, Smith, and Whybark, as counsel. The orders of the Cape Girardeau court of common pleas, which accompanied the motion, showed that Houck had been appointed receiver of the plaintiff corporation on the fourth of March, 1893, with full powers,' etc., etc.

This motion for a rule being taken up, was denied. Had it been granted, it is easy to see that under the provisions of section 2035, Revised Statutes, 1889, it would, as the distance to Cape Girardeau is shown to be seventy miles from Yan Burén, have taken at least seven days in order to serve the rule on Houck after the motion had been granted, saying nothing as to a reasonable time which should have been given him in which to answer the rule, so that it would have required a much longer time to have the rule served and answered than is usually allotted for a term of the circuit court in the rural districts; so that this would have occasioned still further delay, and sent the case over to the next term.

Besides that, it was entirely within the discretion of the circuit court whether the receiver should be permitted to intervene and be made a party to the litigation, even if he had made a personal application for permission to do so, because a receiver is a mere officer, the hand of the court exercising his functions in the interest of neither plaintiff nor defendant, but for the mutual benefit of all the parties litigant. Patrick v. Eells, 30 Kan. 680; High, Receivers [3 Ed.], sec. 1.

And it is held that the receiver himself is the proper person to make the application to intervene and be joined with the corporation over which he is appointed, and that to refuse such application when made by the corporation is not error. Ins. Co. v. Jaynes, 87 Ill. 199; Beach, Receivers, sec. 708.

In many instances it is not • necessary to bring in the receiver; certainly not, where the parties in interest are sufficiently represented before the court to enable it properly to determine the controversy. High, Receivers, sees. 259, 260, and cases cited. And this is the situation in the case at bar.

Again, a receiver is a stranger to all proceedings instituted and in progress prior to his appointment, and this status remains until he has been made a party to the action by the order of the court. Beach, Receivers, sec. 708. So that if an action be commenced against a corporation before the appointment of a receiver, there is no legal objection to the continuance of the action in that form until final judgment is obtained. Tracy v. Bank, 37 N. Y. 523; Railroad v. Beggs, 85 Ill. 80; Heath v. Railroad, 83 Mo. loc. cit. 621.

In the foregoing circumstances, therefore, there was no error in denying the motion for a rule on the receiver to show cause, etc., even admitting that such was the proper course to pursue in order to make the receiver a party, as to which point there is no warrant or authority to be found.

Nor, in this connection, should it be forgotten that, assuming as true that Houck was appointed receiver on the fourth of March, 1893, no reason is shown, nor excuse given, why application to make him a party, etc., should not have been made at the April term, 1893, instead of waiting six months thereafter, and until the cause had been docketed for trial.

Immediately after the denial of the preceding motion, plaintiff’s attorney, Whybark, filed an application which he. had with him already prepared, for a change of venue. This application was signed by Smith, Miller, and Whybark, and is sworn to at Cape Girardeau by McCarty, the general manager of the plaintiff railroad. This affidavit is dated September 30, 1893, which was the Saturday next before the Sunday when Whybark went on his trip to Cape Girardeau.

The application and affidavit charged the judge of the circuit court, Judge Wear, with prejudice against the plaintiff railroad, and that defendant Holladay had an undue influence over the mind of said judge, and that in consequence of these grounds the plaintiff railroad could not have a fair and impartial trial, and that the information on which the application for a change of venue was based had come to the knowledge of the affiant since the last term of the Carter circuit court. Dinning, attorney for defendant, on presentation admitted that notice of the intended application was given him at 3 o’clock of the same afternoon. It will be remembered that in the affidavit for a change of venue it was alleged that the opposite party had an undue influence over the mind of Judge Green.

The court took up the application for a change of venue, and refused to grant it, 'giving as reasons that:

“First. The application comes after the cause has been twice called on the docket for trial.

“Second. Because there has been one change of venue granted the plaintiff heretofore.

“Third. Because the application was not made until after the application for a rule to bring in the receiver had been made by plaintiff and the ruling thereon had.

“Fourth. Because the application states that the facts came to plaintiff since the last adjournment of this court and there is nothing to indicate that notice of this application could not have been given to defendant before this cause had been called for trial on the docket.”

There can exist no doubt of the correctness of this ruling. Our statute is explicit that but one change of venue shall be granted either party. Sec. 2258, R. S. 1889.

This point alone would be sufficient to dispose of the case in affirmance of the ruling made. But there was no notice given of the intended application for a change of venue; that is to say, no reasonable notice. An hour or two’s notice does not answer the requirements of section 2262, Revised Statutes, 1889.

Section 2261, Ibid., .requires that affiant shall state when he obtained his information and knowledge of the existence” of the cause assigned as the basis of the application. Here the statement made is that such information reached affiant “since the last term of the Carter county circuit court.” How long “since” that term does not appear. Obviously such a statement is not a compliance with the statute, and does not enable the court to determine what diligence, if indeed any, has been employed, after discovering the ground therefor, in applying for the change.

But the worst feature in the matter of this application is the fact that with the sworn information in his pocket that the “opposite party had an undue influence over the mind of the judge,” counsel holds this in reserve, while he files a motion for a rule, etc., and so soon as he sees this unsuccessful, draws forth and presents the application for a change of venue.

Such conduct will not be tolerated in a court of justice. A party will not be permitted to submit himself to the jurisdiction of a court when he pretends to have information which should prompt him at once to oust that court of its jurisdiction. He- can not take the chances in any such way. State to use v. Matlock, 82 Mo. loc. cit. 457.

After the change of venue was denied, the court ordered the cause to proceed, whereupon counsel for defendant informed the court that the last amended petition and answer could not be found and asked for a rule on the clerk, and the clerk responded as already set forth, and then the statement was made by one of defendant’s counsel, which is uncontradicted, that the lost papers were in the possession of M. R. Smith, counsel of plaintiff, and that he was by consent of counsel for defendant allowed to take them away in June, 1892, and they had never been seen since. Then counsel for defendant informed the court in the presence of plaintiff’s counsel, that he would file certified copies of the original pleadings in case the originals could not be found. There was no objection made by plaintiff’s counsel to the lost papers being thus supplied. This ended the first day’s proceedings. On the second day of the term, Tuesday, October 3, 1893, defendant’s attorney renewed his statement that the lost pleadings were in the possession of M. R. Smith, one of counsel for plaintiff, and that he was informed by Moses Whybark, then present, that Smith, one of his co-counsel, would be present in court at 3 o’clock of that day. Thus ended the second day of the term. On Wednesday, the third day of the term and fourth day of October, 1893, Smith having failed to arrive and the papers not being produced, counsel for defendant were allowed to supply the missing files. The only objection urged by plaintiff’s counsel to this was “because no notice of such intention was served to file said papers, had been served on him or plaintiff, or waived by him or plaintiff.”

These copies of pleadings were duly verified by one of counsel for defendant, who was familiar with the originals, and had helped prepare the answer, and he also testified as heretofore stated that Smith had taken the lost papers away with him in June, 1892.

No error is seen in this ruling of the circuit court. Independent of the statute a court has the power of supplying its missing papers, records, or files. State v. Simpson, 67 Mo. 647. G-enerally speaking, notice would have to be given to counsel having the papers to produce them, before supplying them, but this was unnecessary in the circumstances of this case.

It is not intimated that the files thus supplied were notin all respects substantial, if not literal, copies of the originals, and in these circumstances it should be held no ground for reversal that the copies were not supplied in strict conformity to the statute. See Ivy v. Yancey, 129 Mo. loc. cit. 508, for an analogous rule. Reversals should not occur because of nondetrimental error.

The court then again called said cause on' the docket, when plaintiff’s counsel asked the court to postpone the hearing of the cause until 3 o’clock of that day, to wit, Wednesday the third day of the term and fourth day of October, when the trains would arrive, and presented a verified application for such postponement, the substance of which is the following:

The plaintiff can not safely enter upon the trial of said cause on the third day of October, 1893, and can not as affiant believes enter upon such trial before Wednesday the fourth day of October, 1893, after the arrival of the train, at which time he believes plaintiff can and will be ready for trial. That affiant was not employed as a-n attorney for plaintiff until the twenty-seventh day of September, 1893. That he had never at any time theretofore been employed by plaintiff as its attorney in any ease. That affiant is informed and believes that Hon. M. R. Smith is counsel for plaintiff in this case and in its business generally, and senior counsel in this case. That M. R. Smith resides in Farmington,'Missouri, more than seventy miles from Yan Burén. That affiant is informed that Hon. W. H. Miller is associate counsel and that he resides at Jackson, Cape Girardeau county, Missouri, more than seventy miles from Yan Burén. That said attorneys Hon. M. R. Smith and W. H. Miller are, as affiant is informed, familiar with the facts in said case. Affiant is informed that the evidence is documentary principally, and such documentary evidence affiant is informed is in the possession of said attorneys, M. R. Smith and W. H. Miller. Affiant has been informed that the record and proceedings in this cause are large and extensive, and the issues involved are ' of vital importance to plaintiff and that he has a meritorious cause of action. That the affiant is utterly unfamiliar with the issues involved in this cause or with the evidence to be adduced to sustain them. That he has had no opportunity to inform himself of the same, for the reason that his employment has been only as associate counsel and very recent; he has had no opportunity to consult with any counsel or individual familiar with the case. That he has never practiced as an attorney heretofore in the circuit court of Carter county. That he was enrolled in said court on the evening of the second day of October, 1893, after the hour of 3 o’clock. That he lived in Marble Hill, Bollinger county, Missouri, more than seventy-five miles from Yan Burén, Missouri. That the Current River Railway is the only railroad running to Yan Burén. That he has been informed and believes that said M. R. Smith has been detained in the trial of a case in the circuit court of Madison county, Missouri. That affiant is informed and believes that said Smith can not get away from said circuit court before Monday, the second day of October, 1893, and can not reach Van Burén before the evening of October 4, 1893. That if the case is postponed until 3 o’clock p. m. of fourth of October, 1893, affiant believes that both of said counsel with their evidence and witnesses will be here and ready for trial. That the president (Houck) of the plaintiff corporation lives in the city of Cape Girardeau, Missouri, where the general office of the plaintiff is located and in telegraphic communication with the station on Current River Railroad nearest Van Burén. That he can and will telegraph them to appear in time to arrive at Van Burén the evening of the fourth of October, 1893. That he does not know whether the said W. H. Miller is at his home in Jackson, Missouri. That he has had no communication with him concerning said cause, but he will attempt to communicate with him by telegraph in time for him also to arrive at the time aforesaid. That affiant left his home at Marble Hill on Sunday evening, went thence to Cape Girardeau, Missouri, that evening, remained over night, and on Monday morning, the second of October, 1893, left for Van Burén, arriving at that place prior to 3 o’clock of that evening.

On the fourth he adds a postscript to this affidavit, and says “that since said affidavit was made -he has received a telegram from Louis Houck, president of said road, .that he will be here at this court with his attorneys and witnesses on Wednesday evening, October 4, 1893, after the arrival of the train from Hunter.”

This application to postpone was argued and submitted to the court and denied. Then plaintiff took a nonsuit with leave, etc.

This application for a postponement is without precedent. There is not a symptom of an excuse why Carter or Miller were not present at the Carter circuit court, and the express allegation is made that “ Miller” is familiar with the facts in the case, and he only some seventy miles away. Why was not he present, attending to his duties as one of plaintiff’s counsel? Why was he not summoned by telegram? 'No effort of the kind was made. Oases of this sort are largely and for the most part in the discretion of the trial court, a discretion which will not be interfered with by the appellate tribunals unless obviously abused. State v. Bailey, 94 Mo. 311; State v. Hedgepeth, 125 Mo. 14; State v. Jewell, 90 Mo. 467; State v. Dusenberry, 112 Mo. 278.

This point, also, should be ruled against the plaintiff. And in determining this point it is not wholly immaterial or irrelevant to consider the nature of the petition, and its singular failure to set forth any grounds for enjoining the collection of the garnishment judgment.

Of course if the previous rulings are correct, it must follow that that which refused to set aside the judgment of nonsuit was also correct. The judgment should be affirmed.

All concur.