State ex rel. St. Louis & Kirkwood Railroad v. Hirzel

Barclay, J. This is an original proceeding to obtain a prohibition against Judge Hibzel, as circuit judge of St. Louis county. The plaintiffs are the same parties who are defendants in the case of Mrs. Spencer and her husband against them, in the circuit court of the said county. The demand for a prohibition is founded upon proceedings in the Spencer case. The petition therein may be shortly described as a creditors’ bill against the St. Louis and Kirkwood railroad company, the Scenic railroad company, and Mr. Houseman. One of its features is a prayer for a temporary receiver to preserve and manage a certain railway line, situated in part in St. Louis county. An application for such receiver in that case was granted, August 27, 1896, after due consideration, by the learned circuit judge in vacation. Defendants immediately filed a motion to vacate that order, which motion was overruled, August 29, 1896. On the last named day, an appeal was allowed to the supreme court from the order overruling the motion to vacate the appointment of a receiver, the proper affidavit having been made. An appeal bond in the sum of one thousand dollars was afterwards duly approved by the circuit judge. Between the appointment and the ending of the steps for a suspensive appeal, the receiver was put into actual posses — 442 — sion of the property by means of a writ of assistance in the hands of the sheriff. All of these proceedings took place during vacation of the circuit court; and defendants duly saved exceptions to the vital rulings. An unfortunate controversy arose touching some understandings between the counsel and the learned trial judge during the progress of the events described; but the case at bar can be decided without attempting to solve the issues of fact involved in that controversy. In the view entertained by this court of the undisputed and admitted facts, there is little difficulty in reaching a judgment. The receiver retained possession of the property after the perfected appeal, and did not turn it back to the possession of the defendants, notwithstanding the approval of their appeal bond. The receiver was mady a party defendant in the present action in this court, along with the said judge, and the sheriff who enforced the writ of assistance. No question as to proper parties has been started. The gravamen of the plaintiffs’ complaint here is that the learned circuit judge maintains the receiver in possession, despite the appeal and bond. The object' of this proceeding is to prohibit him from persisting in that course. The action in the supreme court was commenced September 8, 1896. A preliminary rule in prohibition was made by our learned brother Gantt, in vacation, substantially to the effect that defendants “be prohibited from attempting to take or hold further possession of said St. Louis & Kirkwood railway company or any of its property, by virtue of said order appointing said receiver, and the said writ of assistance issued in aid thereof, pending said appeal;” and that they show cause ‘ ‘why said receiver should not be ordered to restore forthwith any and all of said railroad and prop — 443 — erty of the said St. Louis & Kirkwood Railroad that may be in his possession, by reason of said order.” Returns to the rule were filed by the several defendants. We have gleaned the above recited facts from the pleadings, omitting much that the parties appear to deem important, but which we regard as immaterial, considering the opinion we entertain of the proper construction of the law of 1895 (Sess. Acts, 1895, p. 91). 1. The legislative act just mentioned forms part of the general law governing appeals. It is an amendment to section 2246 of the revision of 1889. The provisions of section 2249 concerning the stay of execution to enforce appealable orders, are, therefore, applicable to appeals from orders refusing to vacate the appointment of a receiver. What is the effect of such an appeal, if accompanied with the approved statutory bond? It was held in State ex rel. v. Lewis (1882), 76 Mo, 370, that the “stay of execution” mentioned in this law is not merely a stay of an execution in its technical sense, but a stay of the appropriate process to enforce compliance with the judgment, where the latter commands something affirmative to be done. That idea has been since repeated. State ex rel. v. Ranson (1885), 86 Mo. 327. The provisions for a stay of execution should have a similar interpretation as applied to the interlocutory orders appealable under the law of 1895. When a receiver, pending a suit, is appointed, and an appeal is duly taken (with statutory stay bond) after the order to vacate has been overruled, the further execution of the order appointing the receiver is stayed by virtue of the statute. R. S. 1889, secs. 2249, 2255. In the case of an ordinary execution, the giving of — 444 — ■a stay or supersedeas bond, in the required way, not only stops further active steps upon that process, but in Missouri it also releases any execution that may have been taken out, prior to the filing of the bond. R. S. 1889, secs. 2249, 2289. The statutory declarations on this point set at rest a question which has been a subject of some discussion and differences of opinion in other jurisdictions. 2 Freeman, Executions [2 Ed. 1888], sec. 271a. A receivership of such property as is involved in this controversy , namely, a going railway line, necessitates activity. The receiver is but the representative or hand of the judicial power, and his acts, theoretically at least, are those of the appointing court or judge. If it were held that the appeal and supersedeas did not restore the property to those from whom the receiver had taken it, then necessarily it must further be held that the court by its receiver should continue the active operation of the railway line, in order not to paralyze its usefulness or impair its value, pending the appeal. Yet such activity would be no “stay of execution” such as supersedeas implies and our statute contemplates. On the other hand, if we adopt the analogy furnished by the Missouri statutes, declaring in effect that a supersedeas' bond releases to the defendant in execution any of his property seized under that writ, it should then be held that a stay of proceedings by bond (upon an interlocutory appeal like this at bar) releases the property that has reached the hands of the temporary receiver by way of executing the original order of appointment. Alderson’s Beach’s Receivers, sec. 117. That rule has been announced in a number of states whose procedure permits an appeal directly from a provisional order appointing a receiver. Everett v. State (1868), 28 Md. 190; Northwestern, etc., Ins. Co. v. — 445 — Hotel Co. (1875), 37 Wis. 125; Buckley v. George(1894), 71 Miss. 580 (15 South. 46); State ex rel. v. Superior Court (1895), 12 Wash. 677; (42 Pae. 123). The arguments used in getting to that result are equally applicable to the appeal permitted by our statute in cases like that under discussion. The statute merely requires a motion (in the nature of a motion for new trial) before the appeal is allowable, in order that the appointing authority may first have an opportunity to review and to reconsider its action. But when the appeal is perfected, the merits of the order of appointment itself must pass in review, and are open to full scrutiny. Merriam v. St. Louis, etc., R'y Co. (1896), 136 Mo. 145; 36 S. W. Rep. 630. The statute sanctioning appeals like this was passed in order to abrogate the different rule announced in an earlier opinion in the Merriam case (1895), 126 Mo. 445 (29 ¡3. W. Rep. 152). It was then held that an appeal from an interlocutory appointment of a receiver would not lie under the statute governing appeals as it then stood. The main object of the prompt amendment that followed is readily seen. It was to prevent the great hardships that resulted from depriving parties of their possession of property for long periods under receivership proceedings permitting no prompt review of the justice thereof. The appeal now permissible puts a stop to that abuse by allowing a stay bond to be given (as provided on other appeals) to indemnify the moving party in event his adversary (whose property is ordered into the custody of the receiver) desires to retain it by a supersedeas, until the final decision of the merits of the appointment. ■ This object of the new law is made more plain by the provision that an interlocutory appeal is allowed only where the receivership is maintained, not where it is denied or is dissolved on the reviewing motion, as — 446 — was pointed out in the Kennett road ease (1896), 135 Mo. 230; 36 S. W. Rep. 357. An interlocutory order denying'a receivership is not appealable under the act of 1895. Considering the manifest purpose and intent of this legislation we believe we will best effectuate them by holding that the property in this case should be restored to the defendants in the Spencer case at once, thus giving to the supersedeas bond the force it was designed to have by the statute regulating stays of execution. 2. The facts shown by his own return indicate that the learned circuit judge did not coincide with the views above given. The question at issue was a new one in this State. He was of necessity required to act without opportunity for a full examination of the sub-' ject. We are entirely satisfied that his conduct in the premises was characterized by the most honorable motives, and with a desire for the proper discharge of his official duty. Yet we are obliged to hold that he was in error in not requiring the receiver to let go when the appeal bond was approved, and the appeal perfected. He did not have jurisdiction to retain the property by his receiver after the bond was accepted so as to become a supersedeas. It was held in State ex rel v. Dillon (1889), 98 Mo. 90 (11 S. W. Rep. 255) that the approval of an appeal bond determines the question of its sufficiency as a stay of proceedings, until the further order of some competent court. That ruling has been recently approved. American Brewing Co. v. Talbot (1896), 135 Mo. 170; 36 S. W. Rep. 657. There are some decisions to the contrary. Parker v. Railroad (1869), 44 Mo. 415; State ex rel. v. Adams (1881), 9 Mo. App. 464. But we believe that the Dillon case declares the correct meaning of the statute. Sec. 2249. — 447 — So the approval of the bond in the Spencer case operated to stay all proceedings to enforce the receivership order; and, as incident to that stay, it had likewise the effect to release the property to the party from whom it had been taken by reason of the order of appointment of the receiver. 3. The writ of prohibition is available to keep a court within the compass'of its legitimate judicial action as defined by the law. Where a court asserts and uses a judicial power not granted to it, and in a manner which permits no reasonably adequate and prompt correction, by the ordinary methods of review, though the court may have general jurisdiction of such cases, the writ of prohibition nevertheless may be utilized to prevent the further exercise of the power so asserted, in excess of the jurisdiction of the court (or of a judge) so acting. It is not always essential that the remedy of prohibition be the only one that might be applied. State ex rel. v. Elkin (1895), 130 Mo. 90 (30 S. W. Rep. 333). Prohibition is, of course, not available to correct a mere error in the exercise of vested judicial authority. It has' been lately ruled in Wisconsin (following an earlier decision of Chief Justice Ryan) that the court in which an appeal is pending may, on motion, direct the restoration of property unlawfully withheld upon process, issued in violation of an existing stay of execution. Janesville v. Water Co. (1895), 89 Wis. 159 (61 N. W. Rep. 770). Whether such a motion would lie in this State is quite immaterial. The writ of prohibition with us is applicable to prevent usurpation of judicial power, at all events, as well as in those instances where the remedy was applicable under existing law at the time when the statute regulating the writ was enacted. — 448 — (Sess. Laws, 1895, p. 95.) It has been directly held in Missouri and in other jurisdictions that, even without such a statute, prohibition can properly go to prevent the execution of process that has been duly superseded according to law. State ex rel. v. Judge (1872), 24 La. Ann. 598; State ex rel. v. Lewis (1882), 76 Mo. 370; State ex rel. v. Superior Court (1896), 13 Wash. 638 (43 Pac. Bep. 877.) But thé general principles governing the use of this remedy have been so fully declared in recent opinions in this State that we deem it unnecessary to prolong the discussion on this branch, of the case. We hold that the writ is properly applicable in the case at bar. 4. Nor was it necessary for defendants (before coming here) to make any further formal application to the learned circuit judge by way of suggesting his want of jurisdiction over the property after the appeal became perfect by the approval of the bond. That approval entitled the defendants to a release of the property by force of the statute touching stays of execution (sec. 2249) as already shown. The record thus plainly proclaims no jurisdiction in the circuit court or judge to longer retain the property under the receivership. In such a case it is not necessary for parties, moving for a prohibitory writ against the circuit judge, to again apply to him for a release of the property on the special ground of want of jurisdiction, disclosed on the face of the record itself, when it is obvious from the whole proceedings that such an application would be futile. Mayor, etc., v. Cox (1867), L. R. 2 E. & I. App. 282. 5. The proceedings before the learned circuit judge were had in vacation. There is no doubt of his power to make the order of appointment at that time. B. S. 1889, sec. 2193. The court in banc has already — 449 — held, and we now repeat, that the allowance of appeal, and the steps to perfect it, may occur during vacation as a necessary part of the new scheme of procedure for permitting a prompt review of interlocutory orders made appealable in suits like the Spencer case. Laws, 1895, p. 91; Pelzer v. Hughes (1887), 27 S. C. 408; Wabash R. R. Co. v. Dykeman (1892), 133 Ind. 56 (32 N. E. 823); St. Louis, K. & S. R. Co. v. Wear (1896), 135 Mo. 230 (36 S. W. Rep. 357). 6. The plaintiffs have entitled their suit “The State of Missouri at the relation,” etc., as appears at the opening of the report of this case. We have followed that caption, as no question is raised concerning it. But we would remind our brethren of the bar that the statute regulating procedure in prohibition contemplates a simple form of action between the actual parties concerned as plaintiffs and defendants, and applies the general provisions of the code of practice to-such cases as far as it is properly applicable. Laws 1895, p. 95, sec. 3. 7. From the foregoing it follows that the returns of the defendants are insufficient, and the preliminary rule in prohibition should be made absolute. It is so-ordered; and we further order that the defendant, the receiver, forthwith deliver all property in his custody to the parties from whom he received the same under the writ of assistance in the Spencer case. Brace, C. J., and Gantt, Macfarlane, Sherwood, Burgess, and Robinson, JJ., concur. ON MOTION FOR REHEARING. Per Curiam. On reconsideration of the opinion, filed heretofore in this cause, the majority of the court agree to adhere thereto, and to overrule the motion for — 450 — rehearing, Barclay, C. J., and Gantt, Macfarlane, Robinson, and Brace, JJ., concurring; Sherwood and Burgess, JJ., dissenting. ON MOTION FOR REHEARING.