State ex rel. Klotz v. Ross

Gantt, J. This is an original proceeding in this court to obtain a peremptory writ of mandamus commanding the above named respondents to deliver to the relator, Eli Klotz, all and singular the railway property, effects and credits of the St. Louis, Cape Girardeau & Fort Smith Railway, a railroad organized under the laws of this state, and running from the city of Cape Girardeau westward to a point in Carter county, Missouri, about'one hundred miles in length. Upon an application filed in this court on March 16, 1893, an alternative writ issued to the respondents to show cause, on March 25, 1893, why a peremptory writ should not issue. The alternative writ was duly served and return made on the twenty-fifth of March, and leave taken by both sides to take evidence. John W. Dryden, Esq,., of the St. Louis bar, was appointed a special examiner to f ake the proof and report to this court on May 2. This was done, and on the second day of May the evidence was submitted and argument heard and leave taken to file briefs. The alternative writ alleges the incorporation and extent of the said railway; that Louis Houck was and is its president and general manager and the owner of a majority of its stock; that Alexander Ross the ■ judge of the Cape Girardeau court of common pleas, and that said court is a court of limited jurisdiction,. — 33 — created by an act of the legislature, approved February 23, 1851 (Acts of 1850, 1851), and an amendatory act approved February 2, 1853 (Acts of 1852, 1853, p. 80). It then avers that Eli Klotz was appointed receiver of said railway on the third day of March, 1893, by the Hon. John Gr. Wear, judge of the circuit court of Stoddard county, Missouri, m vacation, in a certain cause wherein E. Gr. Merriam is plaintiff, and the said' railway company, Leo Doyle, trustee, and the Mercantile- Trust Company are defendants, then pending in said Stoddard county circuit court ond returnable to the fall term thereof for the year 1893; that afterwards said provisional appointment, made in vacation as aforesaid, was duly confirmed by the circuit court of Stoddard county ón March 13, 1893; that in pursuance of said appointment the relator duly qualified as such receiver by taking the oath and filing his bond as such; that he demanded of said Louis Houck, the president of said railway, the possession thereof, but said Houck refused to deliver the same, claiming that he had been duly appointed receiver himself on the fourth day of March, 1893, by Hon. Alexander Ross, judge of the Cape Grirardeau court of common pleas, in a suit in said court, wherein said railway company was plaintiff, and Leo Doyle, Edward Hidden and the Mercantile Trust Company of New York are defendants; that he had qualified under said appointment and had taken possession of said railway by virtue thereof. It is then averred that relator appeared in said Cape Grirardeau court of. common pleas and exhibited to Judge Ross a copy of his appointment by the circuit court of Stoddard county and suggested that Judge Ross had no jurisdiction to appoint said Houck, because of the prior proceedings in the circuit court of Stoddard county, and because said common pleas court had no jurisdiction over equity cases, especially — 34 — such a case as is set forth in the bill filed by said railway company against said Leo Doyle et al., in which said Houck was appointed receiver. The said bill is copied in full .in the writ, and it is unnecessary to repeat it here. It then appears that Judge Ross declined to take any action at the time, but in vacation continued the hearing till the May term of his court, to which relator excepted at the time. It then avers that the petition in the Cape Girardeau court of common pleas does not state facts sufficient to constitute a cause of action. The writ then avers that relator is thus unable to obtain possession of said railway and prays this court to command the respondents to show cause why they should not be directed by this court to turn over said property to him. The returns of the railroad company and other respondents aver the order of the Stoddard circuit court appointing relator Klotz. receiver, was annulled on March 13, 1893, by that court; that he never had possession of the railroad, but that Houck, receiver, always has had since his appointment and qualification; that the common pleas had, and has, jurisdiction; that its judge, the respondent, Ross, has so adjudged, and in his orders and proceedings under the bill named had acted judicially, and is proceeding in due course to hear and determine the same, and all questions in relation thereto as the same may arise; that Klotz, pretending to be a receiver, appeared in this common pleas court on that proceeding and filed a petition for possession, which was ordered filed and continued to the May term, 1893, and is there now pending. This return also sets forth, as a separate defense, that the mortgages under which Merriam claims to hold the bonds, the coupons of which are not paid, and because — 35 — whereof he begins suit, cover only twenty-five miles of this whole road of which it has been attempted to give Klotz,'as receiver, possession, which road is one ^hundred miles long; that, of the twenty-five miles covered, only five are in Stoddard county; and the bill seeks not a foreclosure, but that the road may be “sequestered for payment of interest heretofore accrued and that may hereafter accrue, and a receiver appointed to take possession and operate the railroad as a unit,” and for general relief. This portion of the return also • states the provisions of each of these mortgages to the effect that the bonds do not mature until 1901, but .that, if interest was not paid, the trustee therein (Leo Doyle) should, on demand of holders of not less than one-fourth of outstanding bonds thereunder, take possession of the'road as far as covered by the mortgage and operate the same for bond holders; and that it was in said mortgages expressly provided that nothing 'therein could be construed to affect or put any burden >or liability on the right of way, bridges,.property or lands acquired or to be acquired on or along (in the first mortgage) the Lakeville division of the road, extending from the (Delta) junction to Lakeville or beyond that point, and (in the second mortgage) on or ■ along the roadway lying and being southwest of Lake-■ville, or any donation or gift made to aid the road. And the return avers and claims, on the facts stated, that an order taking the whole road under the circumstances and contracts just mentioned, is in violation of •the several constitutions of the state of Missouri and of the United States, declaring that no person shall be' deprived of property without due process of law, which guarantees are relied on and invoked by 'respondent. This return further sets forth the proceedings on •.the thirteenth of March, 1893, in the Stoddard circuit — 36 — court in the Merriam suit, when this respondent, as well as Leo Doyle, filed its motion to annul the order-appointing Klotz receiver, and for a change of venue; and that on that day the circuit court was open, and the court then and there having fully considered the matter vacated the appointment of Klotz, relator herein, and that the court was then adjourned to the next term in course by the legal and acting judge, who-had up to that time been holding the term; and that the pretended order confirming the appointment of Klotz, set up by relator, was illegally entered after said, adjournment and is void. The relator’s answer to this return is aimed at this last averment and sets forth the- original order of" March 3, 1893, of Klotz’s appointment, and ordering the clerk to issue a summons and notice to defendants, therein, to appear before the circuit court at Bloomfield on March 13, and show cause why said order-appointing Klotz receiver should not be confirmed; that the railway company and Doyle did appear, and filed motions to vacate the receivership and for change of venue; that Greorge Houck pretended to exercise the functions of the temporary and provisional judge, conspired with Louis Houck and his attorneys to fraudulently circumvent the confirmation of receiver Klotz, knowing Judge Wear was on his way to hold court pursuant to notice, and convened court at eight o’clock, and although motions were required to be filed one day, Houck, judge, sustained said motion, and did immediately pretend to adjourn said court, and conspirators fled the town, but Judge Wear, circuit judge, did convene said court and did on investigation of the minutes enter an order as follows: ‘ ‘Monday, March 13, 1893, the seventh day of March term, 1893. Court opened as usual, pursuant to adjournment, the Hon. John Gr. Wear, judge of the — 37 — ■circuit court of this county, presiding pursuant to notice duly made to the clerk and sheriff of this court. It appearing to the court that prior to convening at the usual hour and pursuant to the aforesaid notices, that one George Houck, assuming to exercise the functions ■of a judge of this court, had, at an unusual hour, and with knowledge of the notices given that I, as judge of said court, would be present and open the court at the usual hour, and knowing that I as said judge was in the county and on my way to hold the same, did contrive with the attorneys for the St, Louis, Cape Girardeau & Fort Smith Railway Company, and the president of said company, Louis Houck, the brother ■of George Houck, to defeat the hearing of an application for the confirmation of a receiver heretofore by me, in vacation, appointed in the case of E. G. Merriam against the said St. Louis, Cape Girardeau & Fort Smith Railway Company et al., due notice of which had been given to be heard before me on this day, did attempt to fraudulently and conclusively ■convene said court and to make certain orders in said cause at an unusual hour, and did make orders dismissing the receiver appointed by this court upon the pretended motion of the defendants in said cause, although the same had not been docketed, and was not returnable until the December term of this court, and other orders therein, and did immediately attempt to adjourn the court. It is now ordered in view of said fraudulent purpose and want of authority in said Houck to hold this court, this day, that all minutes heretofore made this day, by said George Houck, while pretending to act as judge of this court, be expunged and stricken from the record, and all proceedings pretended to have been made in this court by said George Houck as pretended judge on this day is also stricken and expunged from the docket.” — 38 — The respondents have replied to this that Houck, judge, was elected for the term under the statute in such case at the commencement of the term legally,, and had held court from day to day, that would otherwise have lapsed, and having on the eleventh of March adjourned to the thirteenth at eight o’clock a. m:., and said motions coming on to be heard in due course, disposed of the same, by vacating the receivership order and continuing the motion for change of venue- and the cause to the next term; that he, GeorgeHouck, was the lawful and acting judge for' the term and Judge Wear was without authority to act as he pretended to act, as set forth by relator; that there was no conspiracy, and the motion to vacate was sustained as it ought to have been, and the record and minutes are pleaded in support of this response. This statement so far covers substantially the averments in pleadings filed and offered to be filed. There is a large volume of parol testimony taken by the special examiner, and filed in the cause, and much documentary evidence filed on both sides. By this evidence the following facts appear: On the third day of March, 1893, the suit'of Merriam v. The St. Louis, Cape Girardeau and Port Smith Railway was filed in the office of the clerk of the circuit court of Stoddard county, and simultaneously the order of Judge Wear appointing the relator receiver. That order contains the following provision: “LWÍ/Í72.. This order is a provisional one made by the undersigned judge in vacation, and it is hereby ordered, that the clerk of the circuit court of Stoddard county Missouri, issue a summons or notice to said defendants, returnable on Monday the thirteenth day of March, 1893, to appear at Bloomfield in said Stoddard county, before ■ the circuit court of said — 39 — county and show cause if any they have, why the appointment of said receiver should not be confirmed. “(Signed) John G.Weak, “Judge 22d Circuit.” By the statutes of this state the spring term of the Stoddard county circuit court was required to convene on the first Monday in March, 1893. Laws of Missouri (extra session) 1892, p. 13, sec. 50. Said first Monday was the sixth day of March, 1893. The record of that court on the first day of said March term begins with the following convening order: “The Hon. John G. Wear not being present to hold this court, and having failed to procure another judge to hold said court, a special election was held by the clerk of this court, at which the Hon. George Houck was duly elected special judge, there being more than five members of the bar present, to-wit, H. H. Bedford, W. E. Eord, Thomas Conley, C. L. Keaton., Ralph Wammick, William Kitchen and others, and the Hon. George Houck possessing all the qualifications of a circuit judge, took the oath of office and entered upon the duties as such.” Again, there is no controversy between counsel as to these facts. The said special judge held said court and disposed of the business from the sixth of March down to and including the morning hour of March 13, 1893. The record shows that on Monday, sixth of March, he adjourned court to Tuesday at nine o’clock in the morning. On Tuesday, he adjourned court until eight o’clock Wednesday morning. On Wednesday, he adjourned court to half past eight o’clock Thursday morning. On Thursday he adjourned court to eight o’clock Friday morning. Friday, he adjourned court until nine o’clock Saturday morning. .On Saturday, — 40 — after transacting the business of the court, he adjourned the court until eight o’clock Monday morning. On Monday morning the record shows the court convened pursuant to adjournment, “Hon. George Houck, judge,” etc. On that morning, among other entries, appear the following: “State v. “Napoleon Hickson. “Arraigned. Plea of guilty on count of larceny. Count of burglary dismissed. Sentenced to the penitentiary for two years at hard labor. Ordered that sheriff convey him there with all convenient speed.” “E. G. Merriam v. “St. Louis, Cape Girardeau & Ft. S. R’y Co. “Motion to vacate order filed.” “E. G. Merriam v. “St. Louis, Cape Girardeau & Ft. S. R’y. Co. “Separate motion of Leo Doyle, trustee, limiting his appearance in this court for the purpose of the motion asking this court to vacate the order made by the judge of the court in vacation on March 3, 1893, appointing Eli Klotz, receiver of the St. Louis, Cape Girardeau & Fort Smith Railway Company, for the reasons filed. Which motion being submitted, taken up and heard and considered is in all things sustained; said order is vacated and held for naught.” — 41 — “E. G. Merriam v. “St. Louis, Cape Girardeau & Ft. S. R’y Co., et al. “Separate motion of the St. Louis, Cape Girardeau & Fort Smith Railway Company, limiting its appearance in this court for the purpose of his motion, asking this court to vacate the order made by the judge of this court in vacation on March 3, 1893, appointing Eli Klotz receiver of the St. Louis, Cape Girardeau & Fort Smith Railway Company, for reasons filed, which motion being submitted and by the court taken up, heard and considered is in all things sustained, said order is vacated and held for naught.” “E. G. Merriam v. “Leo Doyle, trustee, et al. “Application for change of venue filed and cause continued.” “E. G. Merriam v. “St. Louis, Cape Girardeau & Ft. S. R’y Co., et al. “Application for change of venue filed and cause continued.” “Ordered by the court that all business pending and undisposed of be, and the same is hereby, continued until the next regular term of this court, and the court adjourned until court in course.” “Geobge Houck,' “Special Judge for March term, 1893.” — 42 — After the special judge had adjourned the court Judge Wear arrived at the county seat that morning, and, finding that Judge Houck had adjourned, he' repaired to the court house, and caused the entry hereinbefore copied in full in relator’s answer, to be spread' on the record,-by which he assumed to expunge and $et aside the record made by Special Judge Houck. Two positions are assumed by the learned counsel for the relator, as to the proceedings on Monday, March 13. They claim first, that Special Judge Houck had no' right to adjourn the circuit court of Stoddard county,, before Judge Wear arrived on the thirteenth of March.. They base this claim upon some kind of inf ormal notice that Judge Wear would be present, that morning, or some promise on the part of Mr. Houck to Judge Wear to hold the court open until Judge Wear should arrive. It must be borne in mind that this record on its face affirmatively shows that the occasion had arisen within ' the contemplation of the laws of this state, when the bar of Stoddard county were authorized to elect a special judge. Moreover, it clearly appears that the requisite number of lawyers were present to elect the judge-, that the proper officer, to-wit, the clerk, held the election; that the person elected had all the qualifications of a circuit judge; that he was elected, and took the oath required by law, and entered upon the discharge of his duties as judge. Can it .be questioned he was now the judge both d'ejure and de facto of that court? We think not. Nor do counsel deny this up to Monday morning, the thirteenth of March, but their contention is that at some point of time between the adjournment Saturday evening, and the convening of the court Monday morning, this special judge’s commission expired, by virtue of a contract, express or implied, with Judge Wear, and that all the acts of the court that morning before — 43 — Judge Wear arrived must be by us held for uaugbt in this proceeding, because a violation of that contract or was the result of a fraudulent conspiracy. The position óf the learned counsel, in short, amounts to this: That a special judge is under some obligation to the-regular judge; is under some kind of an implied contract to do just what the regular judge should desire,, and nothing else. . It must be evident upon consideration that no such principle has any foundation in our laws, or the principles underlying our form of government. The very essence of the judicial office is that the-incumbent thereof shall be independent, and owe-allegiance only to the law of the land. If a regular-judge, he derives his title by election, or executive appointment. If a special judge, under our statute, to-an election by the bar of the court. When he qualifies-by taking the oath of office, he must act under a sense-of high responsibility to the public alone and the law of the land. No other security for his good conduct-can be,’ or is, exacted. The law of this state, recognizing that a special judge is sometimes necessary for the transaction of the public business, has provided when and how he shall be selected. The legislature,, we think, rightly considered that, if a judge at all, he-should be invested with all the authority necessary to-command and enforce that respect due to the responsible position of a judge, hence it provided by section-3326, Revised Statutes, 1889, that “the person thus elected shall, during the period he shall act, have all the■ powers and be liable to all the responsibilities of the circuit judge.” Some discussion was had during the argument whether this election of a special judge could be chosen for a- whole term, or only until Judge Wear should return, and whether a special judge could be chosen for44 ■ a whole term so as to deprive the regular judge, of his right to preside should he appear in court, and seek to resume his duties.. The facts of this case do not require us' to pass upon that question. George Houck, Esq., was elected because Judge Wear was absent, and he did not attempt to hold the court at any time when • Judge Wear was present. That a regular judge may adjourn his court at any time he sees fit, and that his reasons therefor cannot be assailed in a collateral proceeding, we take it, needs no argument or reason to •support it. This necessarily results from the nature of his office. If a regular judge might have adjourned the circuit court of Stoddard county on Monday, March 13, at nine o’clock in the forenoon, then Special ■Judge Houck could do so. He, was the judge of that court and did adjourn it, and that action terminated the March term, 1893. The claim that there was an agreement between Special Judge Houck and Judge Wear outside of the court cannot be permitted to affect the rights of suitors in that court. The courts of record of this state speak by their records and such conventions as were offered to be shown in this case, are not competent to affect the integrity of the record. Upon the clearest principles of public policy no such proof is allowed to impeach the verity of the record in this collateral proceeding. Mobley v. Nave, 67 Mo. 546. Secondly, it is argued that George Houck was incompetent by reason of his relation to Louis Houck to sit in the determination of the motions vacating the receivership of relator. Our statute,, section 3247, Revised Statutes, 1889, reads: “No judge of any court of record, who is interested in any suit or related to either party, or who shall have been of counsel in any suit or proceeding pending before him, shall, without express consent of the parties thereto, sit on the trial or determination thereof.” It is not claimed by coun — 45 — sel that George Houck had any pecuniary interest in-the suit of Merriam v. The Railway Company, or that he-had been of counsel in said suit, or that Louis Houck was a party to said action. On the face of the record he was clearly not incompetent by virtue of this statute; but it is argued that as Louis Houck was a stockholder in the railroad, this disqualified George Houck. The contention of relator is that his action is void. If voidable or erroneous only, it does not fall within our jurisdiction in this proceeding to entertain it. The effect of a disqualification of a judge by reason of' relationship to the parties to an action, has often been adjudicated in the courts of the several states and the-rule obtaining in a majority of the states is that such a judgment is voidable only, and not absolutely void. Especially is this true in those states which, like Missouri, have statutes permitting the parties to waive an objection of this character. Fowler v. Brooks, 64 N. H. 423; Phillips v. Fyre, L. R. 6 Q. B. 1-22; Trawick’s Heirs v. Trawick’s Adm’rs, 67 Ala. 271; Rogers v. Felker, 77 Ga. 46. The position of counsel for relator leads to this, conclusion. They would have this court in this mandamus proceeding determine that the record made by Special Judge Houck is not true and that he was a usurper when he made it; but, as.he was the judge of' that court, we know no reason why the record he made should not be accorded the same presumption of verity that is universally shown to the records made by other courts within their jurisdiction. We have heretofore, so held. Green v. Walker, 99 Mo. 68; State v. Gamble, 108 Mo. 500. But it is asked how else can the fraudulent conspiracy be shown. We answer, by a direct proceeding for that purpose. The circuit court of Stoddard county has original jurisdiction to hear and determine whether — 46 — the action of Special Judge Houck was tainted with fraud or corruption; but, most clearly, this court has no .jurisdiction to determine that fact in this collateral proceeding. That mandamus will not lie for such a /purpose we think is well settled. Dixon v. The Judge, 4 Mo. 286; State ex rel. v. Young, 84 Mo. 94; State ex rel. v. Smith, 105 Mo. 9. Having reached the conclusion that the record made by Special Judge Houck could not be questioned by this proceeding and in this way, and that record having shown that the circuit court of Stoddard county had adjourned till the regular September term, it .follows that the action of Judge Wear in attempting to reconvene that court on the day after it had been ■adjourned by Judge Houck, ivas unauthorised and of no binding ejfect upon anybody. His proceedings on their face disclose their own infirmity, and the minutes of ■the court, and the adjourning order signed by Special Judge Houck, as-required by section 3231, Revised 'Statutes, 1889, fully corroborates the undisputed fact •that the term had been finally adjourned by the said .special judge. .Was there any power in Judge Wear to reopen ■court, and hold it, under these circumstances?' We ■take it that it is immaterial' whether Judge Houck ought to have waited or not. Inasmuch as he did adjourn the term, could Judge Wear reopen the court ■again as a part of the regular March term? The judicial power in this state can only be exercised at the 'times and places prescribed by law. Accordingly the ■statutes have, with great particularity, specified the day •on which each court, whether circuit, county, probate or supreme court, shall meet. Out of abundant caution it is provided that, if the judge shall be detained, the sheriff may adjourn the court -till the third day, when .if the .judge is still absent he may adjourn to the next — 47 — regular term, and it is provided that the courts may upon notice call special terms, but the whole scope of the legislation on this subject as well as the common law, is to the effect that only at the stated times, and at the places specified, can a court lawfully meet. Eevised Statutes, 1889, sections 3248, 3249, 3250. The mere coming together of the judge, and the other .officers of the court, unless at a time fixed by law or on a day to which the court has been lawfully adjourned, does not constitute a court under our laws. Freeman on Judgments, section 121, and eases cited. This is so clear that we doubt whether any court or lawyer ever questions it. Galusha v. Butterfield, 2 Scam. 227; Brumley v. State, 20 Ark. 77; Dunn v. State, 2 Ark. 229, Stoval v. Emerson, 20 Mo. App. 322. Again and again this court held that, after a term ■closes, the judge nor the court has any power to change a judgment, or entry. An adjournment to the next regular term concludes all further action by the officers at that term. Ashby v. Glasgow, 7 Mo. 320; Hill v. St. Louis, 20 Mo. 584; Harbor v. Railroad, 32 Mo. 423; Van Dyke v. State, 22 Ala. 57. It follows that the averment that the circuit court of Stoddard county confirmed the additional appointment of relator as receiver on March 13 is not sustained by the record and the evidence. Counsel, anticipating this, asked leave to amend their petition and writ by averring that the judge confirmed the appointment; but this amendment is earnestly opposed. In the view we take of the evidence, the amendment will not help relator. It is very evident that Judge Wear was not attempting to exercise his authority as a judge in vacation, but was attempting to hold a court. This is his own positive declaration. As already said, his acts as a court were clearly void, and this proceeding cannot now be upheld as the act of a judge in vacation. — 48 — The respondents were brought into court to answer to a record. They tendered the issue nul tiel record and have sustained it. The provisional order of March 3, 1893, having been vacated, and the order of March 13, by Judge Wear, confirming-it being void, the relator’s title as receiver was destroyed, and he had no right to demand and take charge of said railroad. Having reached this conclusion, it becomes unnecessary to pass upon the other important questions discussed by counsel, such as the jurisdiction of the Cape Girardeau common pleas court, and the conflict of jurisdiction between that court and the Stoddard circuit court. A decision of those questions will be deferred until a case-is made'calling for their determination. The peremptory writ is denied, and the proceeding is dismissed at the cost of the relator, including the compensation of the special examiner, John W. Dryden, Esq., and the fees of the witnesses, and it is adjudged that respondents have execution therefor. All concur, except Shekwood, J., who dissents.