State Ex Rel. Robertson v. Sevier , 342 Mo. 346 ( 1938 )

REPLY TO DISSENTING OPINION [1] In the dissenting opinion it is asserted that this court does not have jurisdiction to grant an absolute writ on a mere application for prohibition; that the provisional rule should issue, so that respondent would have an opportunity to either admit or deny the facts alleged in the application and an opportunity for a hearing on the issues there made.

[2] There would be merit in this contention if the facts were in dispute. But since the facts are admitted, whether or not relator is entitled to prohibition is a pure question of law which can and should be decided now.

In 50 Corpus Juris, page 703, section 116, the law is stated as follows:

"Where only a question of law is involved, it is not necessary to issue an alternative writ in the first instance."

The same authority on the same page in section 113, states the law thus:

". . . the usual practice on applications for prohibition is to issue, in the first instance, a rule to show cause why the writ should not be granted, which will be made absolute or discharged according to the circumstances of the case. However, if due notice has been given to the opposite parties, the court may, without a rule nisi, award an absolute writ."

In Ex parte Lyon, 60 Ala. 650, 655, the law is thus stated:

"In the present case, the chancellor and Mr. Foster here had reasonable notice of the time and place of making this application; the whole record is before us, and the merits of the application have been fully argued. We, therefore, consider it unnecessary to award a rule nisi, before awarding an absolute writ."

The law which should govern this case is well stated by this court en banc in the case of State ex rel. v. Barnett,245 Mo. 99, 149 S.W. 311. In that case prohibition was sought to prohibit the Circuit Court of Audrain County from proceeding further with a cause pending in that court. The provisional rule was granted, and the respondent instead of filing a return, filed a demurrer to relator's petition for the writ. We there stated the rule as follows:

"The issues in this case are made by the petition for the writ of prohibition and respondent's demurrer. The demurrer admits all well-pleaded facts in the petition stated, and if these facts, thus admitted show relators' right to the writ the demurrer should be overruled, and the writ made permanent. In other wordsno further pleadings will be tolerated. Such seems to be the rule of this court as well as the general rule." (Italics ours.)

While in the case at bar the provisional rule has not been issued and there is no demurrer to the petition, as in the cited case, but this difference in the facts does not render the ruling in the cited case inapplicable to the instant case. As we read the cited case it holds that as soon as the facts are admitted, no further proceedings will be tolerated, and it will then be determined whether the relator is entitled to an absolute writ of prohibition on the admitted facts. The manner in which the facts are admitted would not change the rule. If the facts in the cited case had been admitted before the provisional rule was issued and before the demurrer to the petition was filed, the ruling would have been the same. In other words, a relator's right to an absolute rule in prohibition on admitted facts is determined from such admitted facts, and not from the time when or the manner in which they are admitted, whether by demurrer or otherwise.

As above stated, the reason advanced in the dissenting opinion for issuing the provisional rule is to give the respondent "an opportunity to either admit or deny the facts set forth in the application and an opportunity for a hearing on the issues there made." There would be merit in this contention if respondent had not been notified of the date when the application for the writ would be made, and had not appeared, or if he had appeared and denied the facts alleged in relator's petition. But such is not the situation. He received and acknowledged service of a written notice stating when relator's application would be filed, together with a copy of said application thereto attached. He voluntarily entered his appearance by filing a printed brief and argument, and a statement of the facts which, in effect, amounts to an admission of the facts alleged in the application for the writ, as will appear by comparing relator's petition with the facts stated in respondent's brief. Relator's petition alleges:

"That the mandate of this Court in Cause No. 34629 entitled The American Constitution Fire Assurance Company et al. v. O'Malley (The 16 2/3 per cent rate case) was transmitted by this Court to the Circuit Court of Cole County; that after the receipt of said mandate and on April 2d 1938, the respondent, as Judge of the Circuit Court of Cole County, entered an order and caused a copy thereof to be served upon your relator. That the order so entered on April 2d 1938, by respondent purported to conform to the mandate of this Court and ordered the funds remaining in the registry of the Circuit Court of Cole County in the sum of $1,651,981.53 to be turned over to your relator. Said order further directed the relator to distribute the impounded funds immediately among the persons lawfully entitled thereto ``after the payment of all lawful claims and demands as constitute proper charges against said fund under the orders and judgment of this Court heretofore or hereafter made.' (A true and correct certified copy of the order so entered is hereto attached and marked Exhibit "A" and incorporated herein as fully as if set out herein verbatim.)

"That your respondent is asserting that he has the authority to superintend your relator in the return of these funds wrongfully taken from the policyholders; that your respondent is asserting authority and power to hear and allow or deny claims against the funds in the hands of your relator as the lawful custodian thereof.

"That certified checks of the depositories in the total sum of $1,651,986.53 have been delivered by the Clerk of the Circuit Court of Cole County to your relator."

Respondent's brief states the facts as follows:

The Issues. "During several years past certain fire insurance companies doing business in Missouri wrongfully collected a large amount of money from their policyholders. The Circuit Court of Cole County, assuming that it had jurisdiction in the premises, caused the fund created by the wrongful collection of premiums, as aforesaid, to be impounded in the registry of the court. Thereafter the court, still assuming it had jurisdiction in the premises, appointed a custodian of the fund, and directed that custodian to distribute the fund to the policyholders from whom the fund had been wrongfully collected. In due course an appeal was taken from the Circuit Court of Cole County to the Supreme Court of Missouri, which court held that the Circuit Court of Cole County was without jurisdiction in the impounding of said fund; that said fund was unlawfully taken from the policyholders; that, by virtue of his office, the Superintendent of the Department of Insurance of the State of Missouri was the proper custodian of the fund; that the fund, subject to lawful claims against it, belonged to the policyholders.

"The cause was remanded to the trial court, with directions to immediately return said fund to the Superintendent of the Department of Insurance of the State of Missouri, for distribution by said superintendent to the policyholders.

"On April 2, 1938, the respondent, as judge of the Circuit Court of Cole County, entered an order directing that the fund remaining in the registry of the Circuit Court of Cole County, amounting to $1,651,981.53, be turned over to said Superintendent of the Department of Insurance of the State of Missouri. Said order further directed the said superintendent to distribute the impounded fund immediately among the persons lawfully entitled thereto, after the payment of all lawful claims and demands as constitute proper charges against said fund, under the orders and judgments of the court heretofore or hereafter made.

"The application for writ of prohibition is based upon the assertion that the Circuit Court of Cole County has no jurisdiction over this trust fund unlawfully collected, and impounded in said circuit court under an order made by the court when acting without jurisdiction."

Respondent is not entitled to have the provisional rule issue in order to give him an opportunity to admit or deny facts which he has already admitted in his printed brief. Since the facts are admitted, there is nothing left to be done except apply the law to the admitted facts. If the admitted facts entitle relator to prohibition he will be entitled to it at every turn in the road, now or at any future time. Why delay the closing of this age old case by the issuance of a provisional rule in prohibition, when we know now that in the end, the admitted facts will entitle relator to an absolute rule in prohibition. Moreover, in the very case in which this prohibition is sought, and in which the fund in question was involved, we held that the circuit court had no jurisdiction of that cause. To issue a provisional rule and set the case down for hearing at some later date, would, in effect, permit the parties to again try out the question of jurisdiction which we heretofore finally determined at a prior term. Litigation would never end if we countenanced such practice. Respondent has not been denied due process of law, but on the contrary has twice had his day in court on the question of jurisdiction.

An absolute rule in prohibition should be awarded at this time.