State ex rel. Fischer v. Thomas

LAMM, C. J. The Great Western Life Insurance Company was a domestic corporation in the line of business imported by its title. The International Life Insurance Company was the like. The two took steps heading to a consolidation. To that end a petition was presented under Revised Statutes 1909, section 6936, as amended in 1911 (Laws 1911, p. 264) to the Honorable Frank Blake, Superintendent of the Insurance Department of the State, accompanied by an exhibit of the agreements and plans for consolidation with the reasons therefor. Said superintendent, as authorized by the statutes referred to, had called to his assistance the insurance commissioners of two other States to “form a commission” to hear and determine whether the consolidation should go on the terms proposed, or on others to be substituted, or at all. Due notice had been given and a partial hearing had by the commission at a named place in St. Louis on a day set in the notice, to-wit, November 11, 1912. Objections [106] developing, and the matter being wholly in fieri at the close of the St. Lonis hearing, the commission adjourned to meet In Kansas City on November 25, to complete the hearing and make findings. Four days before it met pursuant to that adjournment, a Mr. Green and three other stockholders of the Great Western (holding four shares of stock in the one thousand outstanding) brought a suit against the two companies, a Mr. Fischer and one Stevenson in the Jackson Circuit Court, charging fraud and corruption in the scheme for consolidation, and injury to stockholders; policyholders and creditors, with a maladministration of Great Western corporate affairs, and praying for an injunction and a receiver. A receiver (a trust company) was appointed by respondent without notice, and ordered to take possession of the properties, offices, books, etc., of the Great Western on giving bond, and defendants were ordered to appear and show cause why the receivership should not be made permanent on a hearing, the date to be fixed upon application. Giving bond mstanter, the receiver took possession of the offices, assets and books of the Great Western as ordered. Two days later said insurance companies and Fischer filed their suggestions here for a writ of prohibition against íespondent, the gist of them being lack of jurisdiction to entertain the bill for an injunction and a receivership while the question of consolidation was before the commission in usual course of orderly administrative detail under said statutes relating to consolidation of insurance companies. We passed a preliminary rule citing respondent to show cause. As a part of that rule the statu quo ante helium (to borrow a warlike term) was re-established, and the books, offices and properties of the Great Western were ordered restored to that company until our further order. Our rule being served and those things done, thereafter plaintiffs in the receiv107 ersbip suit, on November 27, dismissed that suit by entry, reading: “Now on this day come the plaintiffs, in open court, and upon application of plaintiffs, this cause is by the court dismissed without prejudice. “Wherefore, it is ordered and adjudged by the court that this cause be and the same is hereby dismissed; that said defendants and each of them go hence discharged without day and have and recover of and from the said plaintiffs all costs herein, and that execution issue therefor. “And it is further ordered and adjudged that this court retain jurisdiction of the receivership with power to settle the receiver’s, account, to allow compensation to the receiver herein, and to make all other, further and proper orders in relation to the receivership herein.” Motion by Non-Party. Thereafter respondent made return to our rule and relators filed a motion for judgment on the pleadings. Thereafter, without notice, the receiver filed a motion here for an order for return of the possession of the property, or payment of a sum sufficient to cover his expenses and compensation, in case our rule was held improvidently made. This last motion stricken from the files. As said, no notice was given thereof and besides that, movent is not a party to the suit in this court. See ruling on Seibel’s. motion in Gass v. Evans, 244 Mo. 329. So, our jurisdiction to graft in the main stem of the suit an issue of the sort outlined in that motion is not clear. [Wait v. Railroad, 204 Mo. l. c. 504, et seq.] It is suggested in a brief filed for respondent that the parties to the litigation in the circuit court ‘ ‘ settled their differences.” It is suggested in that of relators that the judgment of dismissal has no such significance, contra, that the parties suing for a receivership presently, after our rule was served, went into [108] the Federal court with a bill for like relief (to cut behind the jurisdiction of the State courts) and that court moved by comity was disinclined to proceed since the State court had assumed jurisdiction; that thereupon plaintiffs dismissed their suit to clear the deck for action in the Federal court. Those .contentions are mere makeweights and coloring matter. We lay them out of view. Questions Reserved. A formidable array of questions is discussed in-briefs — e. g.: Some, relating to the sufficiency of the petition for prohibition; some, to the sufficiency of respondent’s return; some, to the office of a motion for judgment on the pleadings as a demurrer and thé office of a demurrer in searching prior pleadings; some, to the jurisdiction of the circuit court in the receivership suit; some, to the proper construction of insurance statutes involved; some, to whether those statutes oust the jurisdiction of a court of equity in such consolidations where the Superintendent of the Department of Insurance is proceeding to determine the right to and terms of a consolidation, as here; some, to the merits of the controversy Moot Case. raised by the recalcitrant stockholders anent the consolidation. They one and all are reserved for consideration in a live case turning on them. This case has become a mere moot case, or, at best, an undisposed of question of the taxation of costs below in a cause that has reached its end in the circuit court by a final judgment of voluntary dismissal. We do not sit as a moot court to determine speculative questions for the benefit of some other case in judgment at some other time. Mark the actual situation. If we prohibited the circuit court from proceeding — cm bonof It has effectually done that by itself. The receivership suit is dead, and henceforth is of no use (except to point a moral). If we held the circuit court had jurisdiction to proceed with that suit— wherefore? It has effectually tied its own hands and [109] could not lift a finger in proceeding to adjudge the merits. Yet if we proceeded to judgment on the merits we would have to do one or the other of those two things and in either event our judgment would amount to the same thing, viz., nothing. Shall a court that is (and has been invited to be) about the serious business of settling a grave question of jurisdiction,' turn aside to emit a mere squeak on costs as the be-all and end-all of the matter? We do not sit in the comedy of Much Ado About Nothing, if we know it in advance. As to costs, while the circuit court by its judgment has determined the liability for costs generally, it has not ruled on the taxation of that part of them relating to the compensation and expenses of its receiver. When it does tax- them as costs, if ever, will its action not be open for review in the ordinary way in the proper appellate court on the appeal of the injured party? Why should we put it in leading strings in advance? Or assume it will err if left to itself? If it be said that by our order and rule we have taken the “fund” away from the receiver out of which it could, might or should reimburse itself for its expenses, etc., thus protecting plaintiffs from being mulcted, the answer is plain, viz.,- plaintiffs in that suit, if fearful the cost shoe might pinch in the future, should have thought of that before dismissing the receivership suit, thereby putting a barrier up to our restoring the property to the receiver to be administered upon. Count the costs! Look before you leap, are precepts of use in, as out of, court. The expenses and compensation of a receiver are but costs (R. S. 1909, sec. 2020) to be taxed and paid as such. The will of the lawmaker in that- regard stands for its own reason. When a suit for a receivership is disposed of by a judgment against the moving party, expenses and compensation do not always come out of the assets of the successful party. [State ex inf. v. Bank (Spencer, Receiver), 197 Mo. l. c. 612, et seq., and cases cited.] [110] On the reasoning and authority of the three very late cases of State ex rel. v. Imel, 243 Mo. 174, 178 and 180, and cases therein cited and followed, this has become a moot case to all intents and purposes and should be dismissed. It is so ordered. All concur.