State Ex Inf. McKittrick v. Wilkie Land Co.

Supreme Court of Missouri

State Ex Inf. McKittrick v. Wilkie Land Co.

162 S.W.2d 846, 349 Mo. 666, 1942 Mo. LEXIS 514

CourtSupreme Court of Missouri

DecidedJune 17, 1942

StatusPublished

Cited by3 cases

This text of 162 S.W.2d 846 (State Ex Inf. McKittrick v. Wilkie Land Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State Ex Inf. McKittrick v. Wilkie Land Co., 162 S.W.2d 846, 349 Mo. 666, 1942 Mo. LEXIS 514 (Mo. 1942).

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Opinion

TIPTON, P. J.

This is an appeal from a dismissal of an information in the nature of a quo warranto, filed in the name of the *667 Attorney General at the relation of A. H. Handlan, to forfeit the respondent’s corporate charter and franchise. The trial court dismissed the information for the reason it was signed only by J. A. Lennon, special counsel for the Attorney General.

During .the argument of the case in this court, our jurisdiction was questioned by the court. The attorney for relator suggested that we had jurisdiction because the Attorney General was a state officer.

This action was not instituted ex officio, but upon request; the individual (relator) is the-real party in interest and the Attorney General is the instrumentality necessary to start the action. The Attorney General is clothed with the power to determine the propriety of bringing an action of this character; but, after he has exercised his discretion and suit has been brought, he is not permitted to dismiss or discontinue it without the consent of the individual at whose request it was brought. In other words, this action is controlled by the relator. [State ex rel. Black v. Taylor, 208 Mo. 442, l. c. 452, 106 S. W. 1023, 13 Am. Cas. 1058; State ex rel. Perkins et al. v. Long et al., 275 Mo. 169, 204 S. W. 914.]

If this were an ex officio proceeding brought by the Attorney General, then there would be no doubt that he would be acting as a state officer under the Missouri Constitution, and we would have jurisdiction of this appeal. Since this action is brought at the relation of A. H. Handlan, he is the real party in interest, and the Attorney General is not a party to this-action in the constitutional sense. [Bank of Darlington v. Atwood, 325 Mo. 123, 27 S. W. (2d) 1029.]

There are no constitutional questions raised by the parties to this action; nor does the record affirmatively show that more than $7,500.00 is involved. ,'

For the reasons stated, the case is transferred to the St. Louis Court

of Appeals.

All concur.

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TIPTON, P. J.

This is an appeal from a dismissal of an information in the nature of a quo warranto, filed in the name of the *667 Attorney General at the relation of A. H. Handlan, to forfeit the respondent’s corporate charter and franchise. The trial court dismissed the information for the reason it was signed only by J. A. Lennon, special counsel for the Attorney General.

During .the argument of the case in this court, our jurisdiction was questioned by the court. The attorney for relator suggested that we had jurisdiction because the Attorney General was a state officer.

This action was not instituted ex officio, but upon request; the individual (relator) is the-real party in interest and the Attorney General is the instrumentality necessary to start the action. The Attorney General is clothed with the power to determine the propriety of bringing an action of this character; but, after he has exercised his discretion and suit has been brought, he is not permitted to dismiss or discontinue it without the consent of the individual at whose request it was brought. In other words, this action is controlled by the relator. [State ex rel. Black v. Taylor, 208 Mo. 442, l. c. 452, 106 S. W. 1023, 13 Am. Cas. 1058; State ex rel. Perkins et al. v. Long et al., 275 Mo. 169, 204 S. W. 914.]

If this were an ex officio proceeding brought by the Attorney General, then there would be no doubt that he would be acting as a state officer under the Missouri Constitution, and we would have jurisdiction of this appeal. Since this action is brought at the relation of A. H. Handlan, he is the real party in interest, and the Attorney General is not a party to this-action in the constitutional sense. [Bank of Darlington v. Atwood, 325 Mo. 123, 27 S. W. (2d) 1029.]

There are no constitutional questions raised by the parties to this action; nor does the record affirmatively show that more than $7,500.00 is involved. ,'

For the reasons stated, the case is transferred to the St. Louis Court

of Appeals.

All concur.

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162 S.W.2d 846, 349 Mo. 666, 1942 Mo. LEXIS 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-inf-mckittrick-v-wilkie-land-co-mo-1942.

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