State ex rel. Riefling v. Sale , 153 Mo. App. 273 ( 1910 )

CAULFIELD, J.

(after stating the facts). — The circuit court having refused to entertain relator’s intervening petition on the ground of an alleged want of jurisdiction, it is the duty of this court to determine whether the circuit court has such jurisdiction.

It is undoubtedly the rule that an appeal divests the jurisdiction of the trial court and places it in the appellate court. [Brill v. Meek, 20 Mo. 358; Ladd v. Couzins, 35 Mo. 513; Oberkoetter v. Luebbering, 4 Mo. App. 481; Burgess v. O’Donoghue, 90 Mo. 299, 2 S. W. 303; State ex rel. v. Gates, 143 Mo. 63, 69, 44 S. W. 739; Burdett v. Dale, 95 Mo. App. 511, 514, 69 S. W. 480; Story and Clarke Piano Co. v. Gibbons, 96 Mo. App. 218, 221, 70 S. W. 168; Donnell v. Wright, 199 Mo. 304, 313, 97 S. W. 928.] And in stating the rule our courts have used the broadest language. Thus it was said at an early day, “when an appeal has once been granted, the power over the subject is functus officio and cannot be exercised a second time.” [Brill v. Meek, 20 Mo. 358.] “When an appeal is perfected, the cause is pending in the appellate court, and not in the trial court” and unless the order allowing the appeal is vacated during the term, the trial court “can make no other or further order.” [Oberkoetter v. Luebbering, 4 Mo. App. 481.] In State ex rel. v. Gates, 143 Mo. 63, 69, 44 S. W. 739, our Supreme Court said that the effect of the order allowing the appeal “is to transfer the jurisdiction of the case from the circuit court to the appellate court.” . . . “In other words, the effect of the order granting the appeal is to suspend all further exercise of judicial functions in the case by the court from which the appeal is taken and to transfer the same to the appellate court, where further judicial proceeding is continued until the case is disposed of. The bond does not operate at all upon the judicial functions of the court; they are suspended by the appeal, bond or no bond.”

But the mere language of a decision is not to be looked to, to discover the extent of the rule announced; it is the conclusion only and not the reasoning by which it was reached, which is the decision of the court, and constitutes our guide. [Koerner v. St. Louis Car Co., 209 Mo. 141, 156, 107 S. W. 481.] The decisions of our courts have not been consistent with the literal meaning of the broad language employed as aforesaid. It has been held that the appeal does not affect the power of the trial court over its own records, or its right to amend, correct and complete them; or its power during the term to set aside the order allowing the appeal; or to set aside the judgment appealed from; or to sign and allow a bill of exceptions; or to revive the cause in the name of an administrator, or, there being no supersedeas, to execute the judgment appealed from. In Crawford v. C. R. I. & P. Ry. Co., 171 Mo. 68, 66 S. W. 350, our Supreme Court said that the statement, “after appeal is taken, the cause is pending in the appellate court so •as to deprive the, circuit court of further jurisdiction over the cause,” applies only to the effect of the appeal after the close of the term of the trial court at which the appeal was taken. And in State ex rel. v. Reynolds, 209 Mo. 161, 107 S. W. 487, the Supreme Court held that the granting of an appeal from a refusal to set-aside an order removing one receiver and appointing another and the approval of the appeal bond, did not remove the receiver last appointed and did not warrant the court in ordering the receiver to turn the assets back to the' defendant from whose custody they were originally taken. And the court quoted with approval High on Receivers, to the effect that a court may remove or discharge a receiver at any stage of the litigation.

There can be no reason for the rule under consid-' eration other than that confusion might arise if the trial court and the appellate court were dealing with the same subject at the same time. Thus, our Supreme Court said, in bolding that the trial court could not proceed to try the case while an appeal was pending from its action in granting a new trial. “The trial of the case going on in the lower court and the question of the right of such court to try the case, pending in the appellate court undetermined, at the same time, would be a strange condition for any case to fall into.” State ex rel. v. Gates, supra. We have examined the cases declaring the rule under consideration with a view to ascertaining the nature of the judgment or order appealed from, and we discover that in each case it disposed of the entire case or was of such a nature that action by the appellate court might be interfered with by further proceedings, or the proceeding attempted to be had, by the trial court, pending appeal; the inhibited exercise of jurisdiction in some manner involved the order or judgment appealed from. Our attention has not been called to any case that applies the rule to a state of facts even remotely resembling that presented by the case at bar. It would seem to be the true rule that whatever the judgment below legitimately covers, the appeal embraces, and the jurisdiction of the lower court over all matters, so covered and embraced is suspended pending the appeal; and that matters independent of and distinct from the questions involved in the appeal are not taken from the jurisdiction of the trial court. [Elliott, Appellate Procedure, sec. 545.]

The necessity for such distinction becomes apparent in extensive receivership proceedings, where, owing to the vastness of the business, the receiver may have taken hold' of many pieces or lots of personal property having, respectively, many owners. It is customary for such owners to claim their property by intervening petition filed in the receivership proceedings. These claims may be very numerous, and for property the value of which is insignificant when compared to the magnitude of the property and. interests involved in the receivership proceeding. It Avould seem absurd to hold that every time an appeal is taken from an order sustaining or rejecting one of these numerous and comparatively insignificant claims, the jurisdiction of the court over the entire receivership proceeding, its poAver to make orders and to pass upon all other claims, Avould be suspended. Yet to hold that every appeal in a cause suspends the trial court’s jurisdiction must lead to that result. We do not believe that the decisions of our Supreme Court go that far.

The intervening petition Avhich respondent refused to entertain had no connection Avith the matter on appeal. It involved a different right Avhich could not be affected by the action of the appellate court upon said appeal. The appeal involved the right of the trustee in bankruptcy to have Juede’s share of the partnership assets as against Francis Hemm. Relator Avas not concerned Avith that, except in an abstract sense. His right, if it existed at all, Avas against all of them. The determination of their rights between themselves could not affect his alleged superior claim against all of them. It is true that his petition prayed that the order appealed from should be set aside, and the jurisdiction of the trial court as to that order was suspended by the appeal therefrom, but the proper remedy, if there was any, was represented by the prayer that the receiver be directed to pay relator’s judgment out of the assets in his hands and the jurisdiction to grant that prayer was unaffected by the appeal. Because relator included in his petition, along with proper relief prayed for, a prayer for action which the court was without jurisdiction to take, did not deprive the court of jurisdiction to grant such proper relief. The prayer for unauthorized action may be ignored.

We do not agree with counsel for respondent that the. relator has an adequate remedy at law in that his claim is provable in bankruptcy and in the bankruptcy court. To supersede relator’s remedy by mandamus the other remedy must be equally convenient and effective as the proceeding by mandate. The proceeding in the bankruptcy court would be totally inadequate in that sense because there only part of the fund which relator claims can be found, while the whole fund is in the hands of the receiver.

Respondent further asserts that “the pending of another action or proceeding involving the same question will prevent the issue of a writ of mandamus.” This is true; but such other action or proceeding must be one to which relator is a party, or by which he may be bound; and relator is not a party to and will not be bound by the pending appeal from the order sustaining the trustee’s petition, which respondent points out as the “other action or proceeding.”

Respondent further contends as grounds for denying the writ, that relator’s intervening petition came too late, and that relator was not a creditor at the time of the firm’s dissolution or when Juede was adjudicated a bankrupt. But these are matters relating to the question whether the intervening petition should be sustained, and are for the circuit court in the first instance. They do not concern us upon this application, where we are limited to commanding the lower court to move. Matters relating to the correctness of its action when it does move may be considered by us on appeal.

Being of the opinion the trial court had jurisdiction to take cognizance of, consider, determine and decide on its merits the intervening petition of relator notwithstanding the pendency of the appeal from its action upon the petition of the trustee, a peremptory writ will be awarded.

Reynolds, P. J., and Nortoni, J., concur.