Meierhoffer v. Hansel , 294 Mo. 195 ( 1922 )

Injunction. From a decree overruling a motion to dissolve a temporary injunction and making the same perpetual, defendant has prosecuted his appeal.

Respondent instituted his action in equity in the Circuit Court of Jackson County at Kansas City, Missouri, on October 4, 1920, to restrain and enjoin appellant, his agents and attorneys, from prosecuting a certain suit instituted by him against respondent in the District Court of Wyandotte County, Kansas, and from all ancillary and auxiliary proceedings in the way of attachments and garnishments, engrafted thereon.

Upon application therefor the judge of the Assignment Division of said Circuit Court of Jackson County issued a temporary injunction in said cause, whereupon appellant filed his answer and motion to dissolve. In due course respondent, under existing rules of that court, served notice upon defendant that said motion to dissolve would be called up for hearing in said Assignment Division. The motion to dissolve was a challenge to the sufficiency of the petition and in its nature a demurrer, and furthermore contained a complaint against the sufficiency of the bond given by respondent. Upon a hearing of said motion, considerable testimony was offered on the issues joined in the pleadings, following the usual procedure of offering in evidenceex parte affidavits.

At the conclusion of the hearing the assignment judge overruled said motion and entered a decree perpetually enjoining appellant from prosecuting his action in any manner in Wyandotte County, Kansas. Appellant thereupon challenged the jurisdiction of the assignment judge to enter a final decree in said cause and offered in support thereof, without objection, certain of the rules of said circuit court. The assignment judge, being also judge of Division No. 1 of said court, thereupon directed the clerk of the assignment division to "put in the record this the cause was tried before Division No. 1, but the court inadvertently did not have it assigned to Division No. 1 before the evidence was through." And again the court said: "The fact about the matter is, the court admits that it should have been assigned to Division 1, but merely overlooked it."

Appellant moved to set aside the judgment and order of the court and for a hearing on the merits of the action. Being overruled, he has appealed, and here, as below, he complains that the assignment judge of the said circuit court, as well as Division No. 1, had no jurisdiction to determine the merits of said action. Other pertinent facts will appear in the course of the opinion.

I. Both parties have briefed the case on the merits of the whole controversy, including the question of jurisdiction. In the view hereinafter expressed, it is only necessary for us to consider the question of the jurisdiction of theJurisdiction. assignment judge to enter a final decree on motion to dissolve.

The Circuit Court of Jackson County at Kansas City consists of nine divisions, and by statutes, Sections 2450 to 2454 inclusive, the judges are empowered to make rules and regulations for the trial of causes pending therein and, perforce of said statutes, such rules thus made become the law. [State ex rel. v. Bird,199 Mo. App. 76, 202 S.W. 436: Goddard to use of Hyde v. Delaney,181 Mo. 564, l.c. 581.]

Rule 18 of said court provides for the selection by the judges en banc of one of their number to act as presiding judge, who is also known as the Assignment Judge or Judge of the Assignment Division. The presiding judge or Judge of the Assignment Division has charge of the general docket and "he shall make therefrom settings of cases for trial and give public notice thereof by announcement from the bench or publication as provided in Rule 22."

It is further provided that the presiding judge shall "hear all summary applications, demurrers and preliminary motions and . . . make up the issues in pending causes. Such applications, demurrers and motions may be heard by the presiding judge on any week day morning. Two days' notice shall be necessary to call up such matter unless a different time shall be fixed in a particular instance by the presiding judge."

Rule 21 of said court provides that "the clerk shall provide and keep a separate minute book and assignment record, which shall be part of the record of the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City, in which shall be entered and recorded all proceedings taking place before the presiding judge, as such. All proceedings before such judge, while acting as trial judge, shall be entered and recorded in the minutes and record of the division in which he shall be at that time sitting."

Rule 22 provides when and how causes may be listed for trial. "At least two weeks before the beginning of each term, and as often thereafter as may be necessary, the presiding judge shall cause to be posted in the bulletin boards in the Assignment Division and the circuit clerk's office a notice requiring attorneys to file with the clerk of the Assignment Division on or before the date fixed in said notice a memorandum of each case at issue of which a trial is desired . . . The Presiding Judge shall, from time to time, make and cause to be posted as above, settings of the cases thus noted for trial. On the day that such cases are set for trial they shall be placed in numerical order on the `Trial' list, and the first case on such `Trial' list shall be assigned to the next waiting division. . . . Each case when assigned for trial shall be immediately tried or dismissed."

Rule 29 provides: "Orders in a cause in the Assignment Division to which a party is not entitled upon the pleadings, will be granted only when they are consented to in open court, or in writing, by counsel upon the opposite side, and filed in the cause, or upon a motion, duly filed."

From the foregoing it is apparent that the matter in controversy was pending in the Assignment Division of said court and that it involved questions cognizable only in that division, namely, the question of making up the issues in the cause. The motion to dissolve alleged "that petition or bill for injunction does not state facts sufficient to constitute any cause of action against this defendant," and all of the other assignments in the motion were of a kindred nature except that portion which challenged the sufficiency of the bond.

It is true that the "motion to dissolve, after answer and in term, whereon evidence in support of the issues may be introduced, contemplates a trial, in limine, of the right to an injunction" (Sec. 1964, R.S. 1919; Davis v. Wade,58 Mo. App. 641, l.c. 646), yet the motion in this case contained preliminary matters cognizable only in the Assignment Division before the presiding judge and preliminary to the trial of the merits. It is not controverted here, but was admitted by the assignment judge that the trial of said motion was not cognizable before him as Assignment Judge, and to perfect his jurisdiction he caused an entry to be made after the trial, assigning said cause to himself as Judge of Division No. 1 of said court. Properly assuming therefore, as did he, that the Assignment Judge was without jurisdiction to try said motion involving the introduction of testimony, our next inquiry is as to the jurisdiction of the Divisional Judge to try said cause without a preliminary assignment from the same judge sitting in the Assignment Division.

II. We hold that said cause, while pending in the Assignment Division, was on the general docket as contemplated by the rules of said court and that the trial divisions, including Division No. 1, could acquire no jurisdiction until a preliminary order had been madeSubsequent regularly assigning said cause for trial to one ofOrder. the divisions (Title Guaranty Surety Co. v. Drennon, 208 S.W. 474; Goddard to use of Hyde v. Delaney, supra; State ex rel. v. Bird, supra, and by analogy, see In re Grading Bledsoe Hill, 222 Mo. 604, l.c. 609), and a subsequent entry in this case was not sufficient.

III. It cannot be argued that by the introduction of testimony on the motion appellant waived the question of jurisdiction, because it is academic that jurisdiction over the subject-matter cannot be waived or conferred even by consent. [In reWaiver. Drainage District v. Voltmer, 256 Mo. 152, l.c. 163, 165 S.W. 338; St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; Title Guaranty Surety Co. v. Drennon, supra.]

IV. The trial judge recognized the lack of jurisdiction in the Assignment Division, and therefore attempted at the conclusion of the trial and after his decree had been entered to correct all questions of jurisdiction by causing the record to show that same had been assigned to himself as Judge of DivisionRetroactive No. 1, and that it was an oversight that the orderOrder. was not made preliminary to the trial.

Following this assumption to its logical conclusion and considering the rules of the court invoked by appellant, we must hold that the appellant was entitled to have all preliminary matters settled in the Assignment Division and the cause put at issue for a trial. Moreover, he was entitled to have a call made for a listing of his case and a publication of notice thereof, and he was entitled to have said cause listed and an assignment regularly made after such listing to one of the judges of the several divisions of the Circuit Court at Kansas City. In addition to this he should have had his opportunity to exercise his right under Section 1357, Revised Statutes 1919, with respect to the matter of taking a change of venue from the judge of the division to which his cause might have been assigned. Moreover, he should have had an opportunity to present the evidence of witnesses other than mere informal exparte affidavits.

It is apparent that the constitutional rights of the appellant were violated, as the processes of the law were not permitted to operate in his behalf, and the privileges and benefits of the law were denied to him.

V. Respondent strenuously urges that the court had jurisdiction to enter a final decree upon the motion to dissolve. This, of course, assumes that the trial judge had jurisdiction of the subject-matter. Whether or not a perpetual injunction may be entered upon a hearing of the motion to dissolve isPerpetual not before us for decision, but we may say that theInjunction. authorities cited by respondent are not applicable, as such cases merely refer to the question of damages arising upon dissolution of the injunction.

"Where the injunction is the only remedy sought — the very life of the bill — and its perpetuation or dissolution is the only matter to be litigated, then the whole case is tried as on a motion to dissolve, whether one is actually filed or not, and all the expenses incurred for attorneys' fees, etc., are properly assessed as damages for procuring a dissolution of the injunction." [Gas Co. v. Joplin, 182 Mo. App. 422, l.c. 432.]

The cases cited by respondent do not warrant the inference that a perpetual injunction may be entered upon overruling the motion to dissolve. That the parties may consent to a trial upon the merits on a motion to dissolve and thus finally dispose of the whole case is beyond question. [Rookery Realty, Loan, Investment Building Co. v. Johnson, 294 Mo. ___.] Such was not the case at bar. Appellant had no trial of his cause and is entitled to one.

The premises considered the judgment of the court nisi is reversed and the cause remanded for a trial. Railey and White,CC., concur.