YALLIANT, J.
— This is an application for a writ to be addressed to respondent, judge of the circuit court of the city of St. Louis, to prohibit him entertaining jurisdiction of a matter pending in his court.
The facts are substantially as follows:
Chandler, the relator, bought a $5000 judgment against tbe Transit Company, which is referred to in tbe pleadings as tbe Miller judgment, and filed a suit [526]*526in equity against the United Railways Company seeking to hold it liable for the payment of his judgment. The suit was in behalf of himself and all other creditors similarly situated who might choose to come in and participate in the litigation. The cause, came on for trial and the plaintiff’s claim for relief against the United Railways Company was duly contested. "When the hearing was ended the court took the decision under advisement, and while it was so held the plaintiff purchased another judgment against the Transit Company and came into court with an application for leave to amend his petition and add this other judgment to his suit and submit the two judgments on the evidence that had already been taken. The United Railways Company consented that it might be done and the amendment was accordingly made. The second judgment was for $4000, therefore the two judgments amounted to $9000', and; came within the appellate jurisdiction of this court. Then while the cause was held'under advisement certain members of the bar, not connected with the case, came into court and filed a paper saying in effect that they held a number of judgments against the Transit Company for which they were also seeking to hold the United Railways liable, that the £[t. Louis Court of Appeals had recently rendered a decision in a like case, within its jurisdiction, which is referred to in the briefs as the Barrie case, holding that company liable, but, if Chandler was allowed to go on, an appeal in his ease would go to the Supreme Court, and thus the Court of Appeals would be deprived of its jurisdiction, and (inferentially) the gentlemen moving in- this matter might not be able to collect their judgments if the Supreme Court should take a different view of the law from that taken by the Court of Appeals, and hence their interest in the matter. Then they went on to say that they suspected that Chandler was not prosecuting his suit in good faith, but had combined [527]*527with the United Railways to give them an appeal to this court; they state certain facts which they say are suspicious, to-wit, that after Chandler had purchased his first judgment the Transit Company withdrew its motion for a new trial and in arrest, and after he had filed his suit in equity the parties to that suit by agreement had it transferred to Division 4, where the Barrie suit was pending, and endeavored to have it consolidated with that suit, but failed; that as to the second judgment which Chandler bought there had not been an assignment on the record when the amendment was made, that the amendment was made after the law was passed raising the jurisdiction of the Court of Appeals to $7500; they state that they believe that Chandler’s claim of ownership is fraudulent in order to oust the jurisdiction of the Court of Appeals. The paper concludes with a “wherefore, .because of the peculiar and suspicious nature of the proceedings,” the case ought to be investigated with a view to dismissing Chandler’s suit. The paper was signed but not sworn to. Mr. Chandler, on being cited to appear, filed his return under oath averring that he bought the judgments in good faith, paid his money for them and was absolute owner of the same, and denying positively the charge of collusion with the United Railways Company, but averring that he was prosecuting his suit in good faith with confidence of success in this court; admits that the amendment, adding the second judgment, was made with the- consent of the United Railways, but denies that his motive in doing so was to enable that company to avoid the Court of Appeals, although that effect would follow. There was no reply to this return, but the court took the matter up, called Mr. Chandler to the witness stand and asked him four questions, in answer to which he stated that he knew the condition of the docket of the Court of Appeals and that of the Supreme Court, that an appeal could be heard in the Court of Appeals in about eight months, [528]*528but that it would be about two years before it could be reached in the Supreme Court; then the trial judge said that was all he cared to hear, and made the order for an investigation.
In his return to the rule to show cause why a writ of prohibition should not issue, the respondent states not only what the record of his court shows and what occurred at the hearing, but he also goes on to make statements that are in the nature of original testimony in this court, that is, he says that he noticed that while the matter was pending before him certain members of the bar, whom he recognized as attorneys for the United Railways Company, were in court and seemed to be taking an interest in the proceedings, and that the clerk of the court informed him that one of these gentlemen had made inquiries of him as to what was being done in the matter, and he also stated that his “suspicions were strengthened” by the appearance and manner of Chandler when he was answering the questions the court put to him. The respondent also said that his long experience as a practicing attorney and a judge of the court had shown him that the Transit Company and the United Railways Company usually contested all judgments against them to the highest courts, and the fact that the Transit Company withdrew its motion for a new trial and in arrest in the case when Chandler bought the judgment was a suspicious circumstance.
The result of the proceeding is that on a mere suspicion Mr. Chandler’s suit is delayed and the gentlemen entertaining the suspicions are left free to go on with their suits under the decision of the Court of Appeals in the Barrie case, and this too in the face of the only sworn statement in the case, that is, the statement of Chandler under oath that he was the bona fide owner of the judgments and was prosecuting them in good faith. How long Mr-. Chandler’s hand would be tied by this investigation proceeding there [529]*529was no promise; maybe for months, maybe for years, long enough, however, apparently, to accomplish all that the movers in the matter desired. The paper was not sworn to, but it is suggested that in open court they offered to swear to it and the court said it was unnecessary. It was unnecessary: because, except as to facts shown by the record, the papers stated only that the movers suspected fraud; it is not necessary to swear to a mere suspicion. A jurat would not have made it any stronger. The paper did not state that Chandler did not really own the judgments, but that the signers suspected that he did not.
Now, let us take the facts that appear in the record, and see what ground there is for suspicion. That the United Railways Company was anxious to get a case into this court as soon as possible is very probable. A decision of the Court of Appeals had been rendered adverse to the United Railways Company and there were a large number of cases within the jurisdiction of that court which would come under the law as laid down by that court.
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YALLIANT, J.
— This is an application for a writ to be addressed to respondent, judge of the circuit court of the city of St. Louis, to prohibit him entertaining jurisdiction of a matter pending in his court.
The facts are substantially as follows:
Chandler, the relator, bought a $5000 judgment against tbe Transit Company, which is referred to in tbe pleadings as tbe Miller judgment, and filed a suit [526]*526in equity against the United Railways Company seeking to hold it liable for the payment of his judgment. The suit was in behalf of himself and all other creditors similarly situated who might choose to come in and participate in the litigation. The cause, came on for trial and the plaintiff’s claim for relief against the United Railways Company was duly contested. "When the hearing was ended the court took the decision under advisement, and while it was so held the plaintiff purchased another judgment against the Transit Company and came into court with an application for leave to amend his petition and add this other judgment to his suit and submit the two judgments on the evidence that had already been taken. The United Railways Company consented that it might be done and the amendment was accordingly made. The second judgment was for $4000, therefore the two judgments amounted to $9000', and; came within the appellate jurisdiction of this court. Then while the cause was held'under advisement certain members of the bar, not connected with the case, came into court and filed a paper saying in effect that they held a number of judgments against the Transit Company for which they were also seeking to hold the United Railways liable, that the £[t. Louis Court of Appeals had recently rendered a decision in a like case, within its jurisdiction, which is referred to in the briefs as the Barrie case, holding that company liable, but, if Chandler was allowed to go on, an appeal in his ease would go to the Supreme Court, and thus the Court of Appeals would be deprived of its jurisdiction, and (inferentially) the gentlemen moving in- this matter might not be able to collect their judgments if the Supreme Court should take a different view of the law from that taken by the Court of Appeals, and hence their interest in the matter. Then they went on to say that they suspected that Chandler was not prosecuting his suit in good faith, but had combined [527]*527with the United Railways to give them an appeal to this court; they state certain facts which they say are suspicious, to-wit, that after Chandler had purchased his first judgment the Transit Company withdrew its motion for a new trial and in arrest, and after he had filed his suit in equity the parties to that suit by agreement had it transferred to Division 4, where the Barrie suit was pending, and endeavored to have it consolidated with that suit, but failed; that as to the second judgment which Chandler bought there had not been an assignment on the record when the amendment was made, that the amendment was made after the law was passed raising the jurisdiction of the Court of Appeals to $7500; they state that they believe that Chandler’s claim of ownership is fraudulent in order to oust the jurisdiction of the Court of Appeals. The paper concludes with a “wherefore, .because of the peculiar and suspicious nature of the proceedings,” the case ought to be investigated with a view to dismissing Chandler’s suit. The paper was signed but not sworn to. Mr. Chandler, on being cited to appear, filed his return under oath averring that he bought the judgments in good faith, paid his money for them and was absolute owner of the same, and denying positively the charge of collusion with the United Railways Company, but averring that he was prosecuting his suit in good faith with confidence of success in this court; admits that the amendment, adding the second judgment, was made with the- consent of the United Railways, but denies that his motive in doing so was to enable that company to avoid the Court of Appeals, although that effect would follow. There was no reply to this return, but the court took the matter up, called Mr. Chandler to the witness stand and asked him four questions, in answer to which he stated that he knew the condition of the docket of the Court of Appeals and that of the Supreme Court, that an appeal could be heard in the Court of Appeals in about eight months, [528]*528but that it would be about two years before it could be reached in the Supreme Court; then the trial judge said that was all he cared to hear, and made the order for an investigation.
In his return to the rule to show cause why a writ of prohibition should not issue, the respondent states not only what the record of his court shows and what occurred at the hearing, but he also goes on to make statements that are in the nature of original testimony in this court, that is, he says that he noticed that while the matter was pending before him certain members of the bar, whom he recognized as attorneys for the United Railways Company, were in court and seemed to be taking an interest in the proceedings, and that the clerk of the court informed him that one of these gentlemen had made inquiries of him as to what was being done in the matter, and he also stated that his “suspicions were strengthened” by the appearance and manner of Chandler when he was answering the questions the court put to him. The respondent also said that his long experience as a practicing attorney and a judge of the court had shown him that the Transit Company and the United Railways Company usually contested all judgments against them to the highest courts, and the fact that the Transit Company withdrew its motion for a new trial and in arrest in the case when Chandler bought the judgment was a suspicious circumstance.
The result of the proceeding is that on a mere suspicion Mr. Chandler’s suit is delayed and the gentlemen entertaining the suspicions are left free to go on with their suits under the decision of the Court of Appeals in the Barrie case, and this too in the face of the only sworn statement in the case, that is, the statement of Chandler under oath that he was the bona fide owner of the judgments and was prosecuting them in good faith. How long Mr-. Chandler’s hand would be tied by this investigation proceeding there [529]*529was no promise; maybe for months, maybe for years, long enough, however, apparently, to accomplish all that the movers in the matter desired. The paper was not sworn to, but it is suggested that in open court they offered to swear to it and the court said it was unnecessary. It was unnecessary: because, except as to facts shown by the record, the papers stated only that the movers suspected fraud; it is not necessary to swear to a mere suspicion. A jurat would not have made it any stronger. The paper did not state that Chandler did not really own the judgments, but that the signers suspected that he did not.
Now, let us take the facts that appear in the record, and see what ground there is for suspicion. That the United Railways Company was anxious to get a case into this court as soon as possible is very probable. A decision of the Court of Appeals had been rendered adverse to the United Railways Company and there were a large number of cases within the jurisdiction of that court which would come under the law as laid down by that court. The United Railways had a perfect right to use all lawful means to speed a case to this court in the hope that this court might take a different view of the law from that taken by the Court of Appeals, and its desire to accomplish that purpose'affords a palpable reason'for the withdrawal of the motion for a new trial and in arrest in the first judgment bought by Chandler and also for its consent to allow him to amend his equity suit and add the second judgment. It was to the interest of the United Railways Company that the motions for new trial and in arrest should be withdrawn so as to expedite the equity suit which it had every reason to believe would follow, as numerous other cases of like character had taken that course. At the time the motions for new trial and in arrest were withdrawn the Supreme Court had jurisdiction of a cause involving [530]*530the amount of that judgment, $5000', therefox'eitisplain that the withdrawing of these motions were to the interest of the United Railways, for it hastened the next step that the company had every reason to believe would be taken by Chandler, that is, the institution of the equity suit. But while that cause was held under advisement by the circuit judge, the jurisdiction of the Court of ■Appeals was raised to $7500, and it then became the interest of the United Railways Company to consent to allow the amendment to be made adding the additional judgment, raising the amount in dispute to $9000. The United Railways Company had already made all the defense it could make and had prepared the case for an appeal to the Supreme Court; it lost in allowing the second judgment to be added nothing but the delay it could have caused, and it gained what it desired, that is, a condition of the case by which it could go to the Supreme Court. Conceding that the United Railways looks out for its own interest and interposes xnotions for delay when it sees fit to do so, it may withdraw such motions when it thinks it to its interest to do so. There was nothing to be gained but delay by the motions for new trial axxd in arrest in the Miller judgment against the Transit Company; the vital question was to come in the equity suit, in which the plaintiff in that judgment would seek‘to hold the United Railways liable, and doubtless that' company thought it would be to its interest to advance the equity suit as quickly as possible in view of the decision of the Court of Appeals. Therefore, we see an interested motive in the United Railways Company for doing what the record in the cases shows it did do, but there was no fraud in it. The United Railways Company had as much right to conduct its litigation with the aim to get its case into the Supreme Court as quickly as possible as did the gentlemen moving in this matter to block its way to this court, as long as no fraudulent means were used.
[531]*531The only fact mentioned in this record on which a charge of fraud could he founded, or a suspicion of fraud justly arise, is in reference to the ownership of these judgments. If, as insinuated, the judgments really belong to the United Railways Company, and Chandler is only pretending to be the owner in order to aid the Railways Company in its scheme to get a moot case before this court, then the case calls into action that power which every court of record has to protect its jurisdiction from imposition. But if on the other hand the judgments belong to Chandler, there is not an act stated in the return of the respondent that justifies the imputation of fraud. On the point of owership Chandler swears positively that he is the bona fide owner and there is not a scintilla of evidence to the contrary.
There is no ground to suspect fraud on the part of Mr. Chandler, on account of his agreement with the United Railways Company in relation to the amendment. It often happens in the progress of a lawsuit that antagonistic parties make concessions to each other where there is an exchange of concessions or where it is to the mutual interest of both. It is true Mr. Chandler might have taken his appeal to the St. Louis Court of Appeals, if the decree in the equity case on his $5000 judgment had been against him, but it is also true that he would have been compelled to institute another equity suit on his $4000’ judgment, and would have had that litigation all to go over again, but by uniting the two judgments in one that burden and expense were obviated. What he gave up was the prospect of carrying his cause to the Court of Appeals, which, had already spoken on the question; what he yielded to his adversary was the right to go to the Supreme Court, which had not yet spoken, and what he gained was the obviating of the labor and expense of another lawsuit. There is no suggestion that he did not prosecute his équity suit in the circuit court with [532]*532all the force he could use or that the United Railways did not resist it with all its power. Here was a case of mutual concessions between the two adversary parties dealing at arm’s length with each other. "What Mr. Chandler yielded was the prospect of getting a favorable decision in the Court of Appeals before a possible adverse ruling on a like question in this court. What the movers in this proceeding would gain by it is the delay they would cause the United Railways in getting a case into this court where there might be an overruling of the decision on which they rely, until they can collect their judgments against the Transit Company. Chandler in his return under oath says that when he amended his equity suit he had no doubt of the correctness of the Court of Appeals decision and. absolute confidence that this court would decide the law in the same way.
There is nothing in the record facts of this case that is not entirely consistent with good faith on the part of Mr. Chandler. As to the ownership of the judgments we have nothing but the sworn statement of Mr. Chandler on that subject, against which there is nothing but a bare suspicion of these movers, prompted possibly by a fear of having a decision on which they rely overruled before they have realized a full benefit of it.
Respondent in his return says that he noticed certain members of the bar in the court room while this matter was on hearing whom he recognized as attorneys for the United Railways, and they seemed interested in the proceedings, and that the clerk of the court informed respondent that one of these gentlemen inquired of him what had been done, and also that respondent in his long experience at the bar and on the bench had noticed a disposition on the part of the United Railways Company to contest every point in its cases, etc. If the respondent trying the question as judge intended to take into consideration his [533]*533own observations of parties other than the party accused and what the clerk told him, he should have notified the party and have given him an opportunity to meet that phase of the case. There is no question but that the United Railways Company was interested in the matter and nothing more natural than that its attorneys should be interested spectators, at the trial which might result in blocking the company’s way to the Supreme Court until all the judgments against the Transit Company under $7500 could be satisfied. But that is a matter in which Mr. Chandler was not interested, and it casts no suspicion on him.
Respondent in his return says his suspicions were “further strengthened” by the manner and conduct of Mr. Chandler when he was questioning him. There is nothing in this record to show us what his manner and conduct were. His answers to the questions were straight forward, and unequivocal, and as soon as the four questions were answered the court pronounced its judgment requiring Chandler to answer the bill of impeachment filed by the gentlemen who entertained suspicions, thus tying his hands for the prosecution of his suit and placing a stigma on him.
Whilst a circuit court has jurisdiction when a proper showing is made to investigate the question of good faith in the prosecution of a cause pending before it, yet it exceeds its jurisdiction when it makes an order as in this case founded on nothing but mere suspicion.
The writ of prohibition is awarded.
Fox, G. J., Gantt, Woodson and Graves, JJ., concur; Burgess, J., not sitting. Lamm, J., dissents and files dissenting opinion.