State ex rel. Millett v. Field

37 Mo. App. 83, 1889 Mo. App. LEXIS 333

• Court: Missouri Court of Appeals
• Decided: May 20, 1889
• Status: Published

Opinion

Gill, J.

Upon a consideration of the record and evidence submitted, we find the material facts of this controversy to be as follows: In December last one J. H. Ramsey, a job printer, binder, etc., becoming financially embarrassed, made an assignment, under the statute, for the benefit of his creditors, and relator Henry S. Millett was made the assignee.

He qualified by giving bond, etc., and entered upon the discharge of his duties. In February, 1889, some of Ramsey’s creditors filed a complaint in respondent’s division of the Jackson circuit court, in which said assignment was pending, praying that Millet be removed as assignee. On March 9, following, the matter was heard by Judge Field, and an order was made, removing Millett from the trust, and appointing William Allbritain assignee in Millett’s stead, said order directing and requiring Millett to deliver over all property, and assets of every description, belonging to the Ramsey estate, to the newly appointed and qualified assignee.

To this action of the court in removing Millett he, at the time, on said March 9, took exceptions, and filed his motion for a rehearing. After being duly qualified, by giving bond, etc., Allbritain served Millett with a copy of the order of March 9, and demanded the assets of the estate. Millett refused, and proceeded with the administration, as though no such order had been made, and among other things he sat as assignee, and heard and allowed claims of March 18,19 and 20, in pursuance of a notice theretofore by him given.

At the next session of Judge Field’s court, on April 3, 1889, Allbritain, the newly appointed assignee, made report of this refusal by Millett and of his continued action as assignee, and the judge then and there directed an order citing Millett to appear April 8, following, and show cause why he should not be punished for a contempt for disobédience of the order of March 9, and for continuing to act as assignee, by allowing claims, etc. Millett, through his attorney then present on said April 3, while admitting disobedience of the order of removal, and the holding himself out as assignee, passing on claims, etc., as charged, insisted that he was so j ustitied in holding out as assignee, because of his pending motion for a new trial," and then and there expressed his desire to appeal the judgment of the removal. That with that desire and intention, he was then ready to present and have allowed his bill of exceptions.

Judge Field refused to consider any bill of exceptions in the matter, alleging two reasons, to-wit: That Millett was in contempt, and that, at any event, there was no right to an appeal from the order of removal. .

On the same day, April 3, the motion for a rehearing, or new trial, on the order of removal, was taken up and overruled by the court and exceptions noted. Millett, through his attorney, tendered a bill of exceptions, as well as affidavit and bond for appeal, but Judge Field refused to consider the same — to pass on the sufficiency thereof, or to permit these papers or either of them to be filed, denying that Millett had any right to appeal, and asserting another reason, to-wit: That the applicant for appeal had no right thereto because of his admitted contempt — in disobedience of the order of March 9.

On this state of facts Millett, the relator, has asked this court to grant its writ of mandamus to enforce an alleged right to have his bill of exceptions allowed and signed, and affidavit and bond for appeal filed and appeal allowed from said order removing him as assignee.

I. We are confronted on the very threshold of this case with the respondent’s objection to our jurisdiction. It is alleged in effect, as the Ramsey estate exceeds in value the sum of twenty thousand dollars that this court has no jurisdiction, in mandamus, in relation to anything connected therewith.

We think this is scarcely a debatable question. In proceedings in mandamus this court has original jurisdiction, concurrent with the supreme court, within the limits of its territorial jurisdiction, and its judgments therein are of like force and effect. Const. Mo., art. 6, sec. 12; Const. Amend. Laws, 1883, sec. 4, p. 216.

“The mere fact, that the controversy may, or even does, involve questions of which the supreme court has exclusive appellate jurisdiction, does not oust this court of its original jurisdiction.” Section 5 of the constitutional amendment (Laws of 1883, p. 216) relates only to the appellate jurisdiction of this court. State ex rel. v. Seay, 23 Mo. App. 628; In re McDonald, 19 Mo. App. 372.

This court has original jurisdiction in the matter of this remedial writ, bounded only by its territorial limits and unlimited as to the values or questions that it may involve.

II. It is next urged by respondent, in his brief, that, even to admit relator’s right to appeal from, the order of removal, he is yet not entitled to mandamus as, it is claimed, relator has other adequate remedy. It is too well settled to require citation of authorities that the relator cannot invoke the extraordinary writ of mandamus if he has any other adequate legal remedy for relief. The question now is, has the relator (if entitled to an appeal) any other adequate remedy. In view of the position taken by the circuit judge, in the matter of the bill of exceptions sought to have allowed by relator, what could relator do towards taking the matter up for review to the appellate court ? It is said he might apply to the appellate court for a writ of error as provided in article 12, Revised Statutes, 1879, or for an appeal as provided in section 3714, Revised Statutes; but how, under the circumstances of this case, could the unsigned bill of exceptions, sought to be allowed, be incorporated in the record? It is true the ;‘record proper,” as it is called, including therein the petition of the creditors for Millett’s removal, his answer thereto and judgment of ouster could be brought up by writ of error or appeal allowed by an appellate judge, but is there any mode provided by the law by which Millett could have completed or perfected this record, by adding thereto the matters contained in the bill of exceptions? We answer no, under the circumstances of this case.

Under the provisions of our statute law there is a way to perfect and settle a bill of exceptions, provided the judge of the circuit court shall act in the matter. If the bill, as presented by the litigant, is true, then there is a mandatory obligation on the judge to allow and sign the same, and it thereby becomes a part of the record of the cause. R. S., secs. 3635 and 3639.

If such bill, in the opinion of the judge is untrue, then the judge may refuse to sign the same for that reason, “andhe shall certify thereon the cause of such refusal.”' R. S., sec. 3637. Then a further step is provided, to-wit: By section 3638, Revised Statutes, after such refusal by the judge (and the refusal on the bill endorsed) the litigant may secure the same to be signed by three bystanders, and it shall then again be presented to the judge, and he shall, if he shall then believe it to be true, permit the said bill to be filed. Then, further, if the judge even yet refuse to permit such bill to be filed, ‘ ‘and shall have certified that it is untrue,” then (and only then) is it permitted either party to “take affidavits, not exceeding, five in number, in relation to the truth of such bill.” R. S., sec. 3640. “Such affidavits shall then, within five days after the return of such bill of exceptions, so certified to be untrue, to the party presenting the same, be deposited in the clerk’s office, and, on appeal or writ of error, copies of such affidavits shall be annexed to and form a part of the record of the cause.” See section. 3641, as amended, Laws, 1885, p. 215.

An issue of fact then is made by this rejected bill of exceptions, endorsed by the circuit judge that it is untrue; and affirmed to be true by the party presenting the same. — and this issue is tried and determined by the court to which the appeal is taken, where if the appellate court finds in favor of the bill, and that it is true, such court will admit the same as part of the record. R. S., secs. 3642 and 3643.

It will be observed, by a careful consideration of these statutory requirements, relating to a bill of exceptions, that, before a suitor can get the benefit of a bill signed by three bystanders, the said bill must have been disallowed by the judge, and refused by him because untrue, and the cause of such refusal certified thereon under the hand of such judge. And it is equally clear that, before- a suitor can ask an allowance of a bill of exceptions by the appellate court, he must show a compliance with the antecedent steps — that the bill was presented to the circuit judge and disallowed by him for the reason that it was untrue, and that such refusal was endorsed thereon, stating the reason therefor and that thereupon he had made further efforts to convince the judge of its correctness and had secured three bystanders to sign the same, and that even yet the circuit judge refused to permit the said bill to be filed. When all these antecedent steps are taken, then the law permits the issue of true bill, or not true bill, to be settled in the appellate court, on affidavits taken, and not till. then. So, then, when Judge Field unqualifiedly refused to consider even any bill of exceptions submitted by Millett, much less to reject the same as untrue and endorse thereon the reason for his refusal, he effectually deprived Millett of the right to perfect the record by adding thereto the matter contained in his bill of exceptions.

Conceding then the principles, in this behalf contended for by the respondent, it is yet clear in our opinion, that mandamus is the proper remedy to enforce action in the matter. Not to advise the judge how he shall act, but that he should move in the matter. If the party litigant, in due season, presents what he claims a true bill of exceptions it is the duty of the trial judge to act thereon. If true he should allow it, if untrue he should, while rejecting the same, endorse his refusal on the bill, and there in writing assign his reason for such refusal. If the circuit judge refuses to sign and allow a bill of exceptions because it is untrue, the appellate court will not by mandamus compel an allowance. But the judge should act, — allow or disallow. He cannot be permitted to sacrifice the rights of litigants by his inaction. State ex rel. Wittenbreck v. Wickham, 65 Mo. 634; State ex rel. Kinealy v. Thayer, 15 Mo. App. 391; Downing v. Shacklett, 49 Mo. 86.

III. We next direct our attention to the principal matter of controversy, to-wit: Has relator Millett a legal right to appeal from the order or judgment removing him as assignee of the Ramsey estate ? If, indeed, relator has no such right of appeal, then, of course, Judge Field rightly denied permission to file a bill of exceptions, or bond and affidavit for appeal. The solution of this question is found in the construction of our statutes on the subject. We have been referred to a number of authorities in relation to receiver’s right of appeal on order of removal, and some few relating to such right in an assignee, but they lend little light to the decision of this case. These voluntary assignments are creatures of statute, and by our statutes the administration thereof is marked out.

Under our law controlling voluntary assignments (R. S. 1879, chap. 5), there are several proceedings, principal and ancillary, looking to the winding up of the estate. Among these may be mentioned the appointment, qualification and duties of the assignee, and then for his removal and appointment of another in his stead. We have, too, the manner of presenting and allowing claims by the assignee with a separate section providing appeals from the judgments of the assignee.

The assignee may be dismissed for various reasons assigned by the statute, such as failing to file an inventory, or to give bond, failing to pay over dividends, etc. Besides, by section 389, it would seem, the court may cite the assignee to appear and answer complaints of maladministration or unfitness preferred by creditors, and “ to do and abide such order as to it shall seem fit and lawful in the premises,” etc. Provisions are made for final settlement by the assignee, allowance of fees, compromising claims,” etc. Then we have, in the latter part of this chapter on voluntary assignments relating to these various proceedings, a provision in reference to appeals to be allowed from the circuit court. Section 393 reads as follows:

“Exceptions to any of the decisions of the court, in any of the proceedings under this chapter, may be taken and preserved by any party in interest to the proceedings, as exceptions are provided for in ordinary actions; and appeals or writs of error may be made or taken to the supreme court, etc. * * * as, and upon the terms in ordinary cases, within sixty days after the final disposition of the proceedings in which such objections are taken, and not after.”

Notwithstanding the able arguments of learned counsel, we discern no good reason for withholding the operation of this section on proceedings (such as the one against Millett) for removal of the assignee, selected and qualified, as he was, under the statute. He was a statutory assignee — a trustee — performing duties under that statute. He was proceeded against by creditors, as provided they might under section 389, and the court, after hearing, had pronounced judgment of ouster against said assignee. This was a final judgment, in one of the “proceedings under this chapter,” and the assignee, so proceeded against, and against whom said order or judgment was rendered, was a “party in interest to the proceedings,” and as such was entitled to have his exceptions to the court’s rulings saved and preserved. We need not, in thus holding, disagree with the Kansas supreme court (15 Kas. R. 501), where it is held that “ whenever the legislature has used a word in a statute in one sense, and one meaning, and subsequently uses the same word in relation to the same subject-matter, it will be understood to use the said word in like sense or meaning, unless there is something in the context, or the nature of things to indicate a different or more extended meaning.” “Parties in interest” or “interested parties,” wherever used in this statute, has the same general meaning. A creditor, seeking to have his claim allowed, is a party in interest, and so he is a party in interest when petitioning for the removal of the assignee. So, too, is the assignee a party in interest in proceedings against him for removal.

In determining the meaning of the words of a statute we shall assume they are used with their ordinary signification. “If the intention of the legislature is manifest and unmistakable, the plain meaning should never be sacrificed to verbal distinctions and technical criticism.” Boggs v. Brooks, 45 Mo. 233. In their contention that an assignee has no interest and therefore not entitled to the appeal, the law-writers and judges are cited as declaring that an officer has no such vested property in his office as will save him from being disturbed, or his office destroyed by the power that created it.

This is an unquestioned law. The party selected to fill an office, created by the legislative power, has no such contract, no such vested right, but that the creating power may abolish the office during his term, unless of course some constitutional provision shall intervene to prevent. Primm v. Carondelet, 23 Mo. 22; Cooley on Const. Lim., side p. 276 et seq.; State ex rel. v. Davis, 44 Mo. 131. But even in such a case, where such right to an office is litigated, is not such an officer “a party in interest” in such litigation?

Would it be contended, that in a proceeding by quo warranto to oust an officer, that he would not be allowed an appeal, because he had no vested right to the office, such as could not be taken from him by the power that made the office. This order or judgment removing Millett was, too, such a final judgment and in such a proceeding from which an appeal would lie. State ex rel. Spickerman v. Allen, 92 Mo. 25; McCrary v. Menteer, 58 Mo. 446; In re Estate of McCune, 76 Mo. 200.

In Spickerman v. Allen, supra, the supreme court held, under a statutory provision similar to that in the assignment law, that a guardian was entitled to an appeal from the order of the probate court removing him, and mandamus was issued commanding an allowance of an appeal.

We have attempted ho review of the numerous authorities from other states and from the text books as to the right, or want of right, of appeal which receivers may have, for the reason that, in our opinion, the statutes of this state have fixed the right in the assignee in this character of proceeding, and we are not called on to express an opinion as to the wisdom, or justice, of the law.

Nor are we to answer the embarrassments, that may come, on the estimation of respondent’s counsel, from permitting a distasteful assignee to continue official relations with an unwilling court. If this is the outrage, which eloquent counsel refer to as so alarming then we can only answer “thus the law is written,” and we are absolved from any degree of blame in the matter.

IY. A further question is this: Was Millett’s disobedience of the order of March 9, and his continued acts as assignee, in face of that order of the court commanding him to desist and turn over the assets to Allbritain, such as to bar his right of appeal %

Prom the facts as we find them, it is clear, that on April 3, when Millett tendered the necessary papers, and asked an appeal from the order of March 9, he was in contempt of the order and proceedings of the court to which he was applying. The evidence does not show an intentional wrong (as commonly understood) as it seems he was acting under advice of counsel. He was, however, in open disobedience of the orders of a court in the rightful exercise of its lawful jurisdiction. It matters not whether the order of removal was correctly made, or was improvident or erroneous. If the court had jurisdiction to make the order, it was contempt of court to disobey it. State v. Horner, 16 Mo. App. 192.

But it is contended by relator’s counsel, that as there was a motion for rehearing or new trial pending, the order on Millett removing him and requiring him no longer to act as assignee, was thereby suspended. The pending of such a motion could have no such effect. That order could not be superseded, except by a bond and affidavit in appeal entitling the appellant to a supersedeas. People ex rel. Day v. Bergen, 53 N. Y. 410; Ortman v. Dixon, 9 Cal. 23; Vose v. Trustees, 2 Woods, U. S. C. C. But, being in contempt, was the court thereby authorized to deny Millett the right to appeal from its judgment. We think not. The right of appeal was a matter of strict right, not a matter of favor or grace of the court; and, being so, the court could not legally refuse its exercise. Brinkley v. Brinkley, 47 N. Y. 49; Hazard v. Durant, 11 R. I. 195.

Y. Notwithstanding the merits of the controversy, thus far discussed, are so largely with relator Millett,' yet from the nature and scope of the petition and alternative writ, we must deny the issue of a peremptory writ.

The petition and alternative writ declares and recites, that relator tendered his bond for appeal, that the same was in the penal sum of five thousand dollars, and was “executed by relator as principal with two sufficient securities. ’ ’ The alternative writ commands respondent, in addition to signing and allowing the bill of exceptions (if the same is true) that he also permit to be filed the “certain affidavit and bond for appeal heretofore tendered your said court,” etc., “and if the same be in form according to law, to proceed to allow the appeal therein prayed for by said relator from your judgment,” etc.'

Now the relator, in our opinion, is shown to be entitled to a portion of that asked for in the petition, and commanded in the alternative writ. He is entitled to an allowance of the bill of exceptions, if true, and the right to file his affidavit for appeal, if in proper form, as prayed for, but this court cannot command the circuit judge to permit relator to file the appeal bond, alleged to be in the sum of five thousand dollars signed by relator and two securities. The penalty of that bond, and the sufficiency of the securities thereon, are matters to be left to the judgment of the court where the same is to be filed, and it is not in our power to exercise this judgment and discretion for, or on behalf of, said court. It is not the province of mandamus, in dealing with subordinate tribunals, to command any particular judgment, or to require the exercise of a discretion, reposed by law in such court, in a particular way.

The superior court may command the lower court to move, but not to move or decide a judicial act in a particular way. R. S. 1879, sec. 3713; State ex rel. v. County Court, 68 Mo. 48; State ex rel. v. Laughlin, 75 Mo. 366; State ex rel. v. St. Louis Court of Appeals, 87 Mo. 376; High on Ex. Leg. Rem., sec. 533.

The peremptory writ of mandamus must conform strictly with the terms of the alternative writ. If more is asked for in the relator’s petition, and demanded in the alternative writ, than can be granted in the peremptory writ, then the peremptory writ must be denied altogether. '

It seems a harsh rule, but such is now well settled in this state by our supreme court, and by its rulings we are constitutionally bound. In 53 Mo. 156, and 73 Mo. 627, it was held otherwise, and it was said that the relator should be entitled to a remedy corresponding with the case made, even though the peremptory writ might differ from the alternative.

However these cases have been expressly overruled, and the law is as above declared. Says Henry, J., in delivering the court’s opinion in State ex rel. v. Railroad, 77 Mo. 147:

‘ ‘Holding that relator is entitled to a portion of what is asked for, but not the balance, can we grant the prayer and award the peremptory writ for that to which he is entitled?” High in his work above cited says: “It is a well-settled principle that the peremptory writ must conform strictly to the alternate mandamus, .being necessarily limited as to form by the terms of the alternative writ.

“In other words, the courts are powerless to award peremptory writ of mandamus in any other form than that fixed by the alternative writ. It follows, therefore, that, if the alternative writ commands the doing of several things, it is incumbent upon the relator, in order to entitle him to the peremptory writ, to show that he is entitled to the performance of all the things specified, and if he fails in any substantial part in establishing his title to any off the things sought, there can be no peremptory mandamus.” See other cases cited, 77 Mo. at p. 148. This rule is adhered to in the later case of School Dis. v. Lauderbaugh, 80 Mo. 190. We cannot command the filing of this appeal bond. It may, and probably will, be unsatisfactory in amount, if not in the matter of the persons offered as securities.

Being unable -then to award a peremptory writ of mandamtts conforming to the alternative writ, we must deny the same. Writ denied.

The judges all concur. Ellison, J., expresses no opinion on division number 3 of this opinion.