State ex rel. Hofmann v. Scarritt

Barclay, J. — This is an original action in this court to obtain a writ of prohibition. It grows out of the suit of 'Walruff against the Weston Brewing Company, in the circuit court of Jackson county. The suit was begun, January 9, 1894, by the filing of a petition, a copy of which will accompany this opinion. On the same day the court (Judge Scarritt) heard an application in the case for a receiver, found the facts substantially as stated in the petition, appointed the plaintiff, Mr. Walruff, receiver of the corporation and of all its assets, and further ordered that the company transfer and deliver to the receiver all its personal and real property of every description, including evidences of debt, book accounts, etc. The receiver was also required to give bond in the sum of $12,000 for the faithful performance of his duties ; to file inventory, etc. The order of appointment contained other terms of direction for the receivership, but, so far as material to the controversy, they will sufficiently appear in the course of the opinion. The receiver duly qualified and took possession of the accessible property. But, in the course of his ad — 337 — ministration, the present controversy arose over one of the items claimed by the receiver as an asset of the corporation. A demand became due in Chicago, Illinois, to said corporation from an insurance company doing business there; and Mr. Hofmann, a resident of this state, garnished the demand, in an action brought by him in Chicago against the insolvent company, Whereupon Mr. Hofmann, upon a formal application by the receiver, was cited to appear before the Jackson county circuit court, wherein the receivership was pending, and to answer for the contempt charged to have been committed by his interference with the property of the receivership, by suit in Illinois as aforesaid. Mr. Hofmann moved to be discharged from the citation, on grounds which will appear further on; but the court denied the motion. Then he, as relator, began this action in this court asking that a writ of prohibition issue to prevent Judge Scakbitt from exercising any further jurisdiction over him in the matter of the alleged contempt. The relator insists that the prohibition should go for two reasons. 1. -It is claimed that the jurisdiction over the receivership in Missouri, which the circuit court of Jackson county may lawfully exercise, does not include any power on the part of that court to interrupt the action of a Missouri creditor, under the laws of a sister state, in reaching uncollected assets of the debtor corporation there, by process to enforce a valid demand against the corporation. But before that question is reached relator must overcome another difficulty. The circuit court has not yet adjudged Mr. Hofmann as in contempt. It has — 338 — declined to discharge him from .the citation; but it has not passed upon the sufficiency of the facts, charged against him as a contempt. That that court has power to'punish for contempt, upon a proper and sufficient showing, is not gainsaid, and it could not successfully be controverted. That Mr. Hofmann is a resident of this state is admitted, and that he was duly brought before the circuit court is not denied. The very question- now raised by relator is one whose solution calls for the exercise of judicial power. The circuit court is vested with the power to decide that question in the first instance, subject to the right of the relator to have the correctness of the ruling reviewed under a different writ, as expressly provided by our statutory law. R. S. 1889, sec. 5378. The writ of prohibition may be invoked to cheek the use of judicial power when sought to be exerted beyond the lines which the law has marked as the limits for the operation of the power. It may be applied to prevent action by a court in excess of its legitimate authority in a proceeding whose subject-matter falls within the general cognizance of the court, as well as to stay an assumption of power over causes which by their nature are not confided by the law to the court’s consideration. But it should not be issued merely to correct some judicial error in ruling on a subject committed to the judgment of the court against which the writ is sought. Still less may it be applied to anticipate a ruling upon a question properly within the authority of the court to decide. The writ can not rightly be employed to compel a judicial officer, having full jurisdiction over the parties and a cause, to steer his official course by the judgment of some other judge, or to substitute the — 339 — opinion of another court for his own in dealing with topics committed by the law to his decision. In re N. Y., etc., v. Steamship Co. (1895), 155 U. S. 523. The circuit court, in the case in hand, can not, on the showing now made, be required to refrain from deciding whether or not Mr. Hofmann has been guilty of a contempt of that court. He has been lawfully brought before the court to answer that charge; and it is not our function, at this stage of the proceedings, to substitute our opinion for that of the circuit judge, to whom the law has given authority to first decide the question now sought to be submitted here. 2. But it is next insisted that the petition on which the case in the circuit court is founded is fatally deficient; and that such deficiency precludes any valid action by that court in the case. The petition is an application for the appointment of a receiver to take charge of the assets of the corporation. The plaintiff is a stockholder of the corporation, and charges that the latter is insolvent. The court had judicial power to appoint a receiver upon a proper and sufficient showing of facts. If the petition presented to that end was defective, it was, and is, subject to amendment. The pending case is of a sort which the circuit court had jurisdiction to entertain and adjudicate. The question whether or not the petition states a good cause of action, warranting the affirmative action taken by the court, does not affect the jurisdiction of the court to consider and rule upon the petition, or upon the application of a receiver founded upon it. The authority to decide the cause involves the right to consider, in the first instance, whether or not the facts present a cause to decide. The distinction between want of jurisdiction and a mere omission to state a cause of action in a case where jurisdiction exists, is plainly marked in our — 340 — statutory law, as well as in decisions of the supreme court. R. S. 1889, secs. 2043, 2047; Hardin v. Lee (1873), 51 Mo. 241; State ex rel. v. Burckhartt (1885), 87 Mo. 533; State ex rel. v. Railroad (1890), 100 Mo. 59; State ex rel. v. Withrow (1891), 108 Mo. 1; State ex rel. v. Klein (1893), 116 Mo. 259. The circuit court had full power to do the act which it was invoked to do, namely, to appoint a receiver of the assets of the corporation, and to determine, in the first place, whether the facts warranted that action of the court. Whether the showing made to obtain the appointment was defective or not can not be inquired into to furnish a basis for prohibiting the inquiry into an alleged contempt of court during the progress of the receivership. The jurisdiction of the court to act in the matter of the contempt appertains to its general power to entertain and decide the cause. The remedy of prohibition can not be called into play to stop the investigation of an alleged contempt merely on the ground that the original petition for the receivership is defective, even in some substantial particular. The action of the court upon the petition implied a ruling that it was sufficient. The writ of prohibition can not be brought into requisition as a speedy substitute for a writ of error to review that ruling, or to correct any other merely judicial mistake which this court may think the circuit court has committed. Where jurisdiction over the parties and the subject of the cause is (as in this instance) clear, any error of the trial court in ruling on the sufficiency of the pleading forming the basis of the suit can not be corrected by resort to a writ of prohibition. The relator has cited and relied upon some rulings in State ex rel. v. Ross (1894), 122 Mo. 435 (25 S. W. — 341 — Rep. 947), to sustain his contention on this branch of the case. But some of us did not concur in that judgment, and the rest of our number consider that the facts shown in the present proceeding distinguish the latter from the case discussed and decided in the opinion referred to; so that we all agree that the decision in the Boss case does not support the relator’s claim for the writ of prohibition now. "We deny the application at the costs of the relator. Macearlane and Robinson, JJ., concur; and Brace, C. J., concurs in the result.