
    STATE ex rel. FENN, Relator, v. RILEY, etc., et al., Respondents.
    St. Louis Court of. Appeals,
    November 18, 1907.
    1. PROHIBITION: Injunction: Merits of Cause. Prohibition will not lie to prohibit a proceeding by injunction, the purpose of which is to prevent a multiplicity of suits, on the ground that the suit for injunction is without merit or the petition demurrable, if the court wherein injunction is sought has jurisdiction to grant such relief.
    2. —>■ ■ : -: Jurisdiction: Restraining Suit in Another Circuit. But it is- beyond the jurisdiction of a circuit court to restrain by injunction the prosecution of a suit at law pending in another circuit, where such injunction relief is the main purpose of the suit, and such a proceeding may be prohibited by writ of prohibition (section 3631, Revised Statutes 1899).
    3. -: -: ->: Pleading Want of Jurisdiction. Tho .general rule that a proceeding will not be prohibited for lack of jurisdiction in the court entertaining it until the want of jurisdiction is first urged without avail upon that court, is qualified by recent decisions so that it is discretionary with a higher court whether it will prohibit a proceeding in a lower court, whose lack of jurisdiction is apparent on the face of the proceeding, before a plea to the jurisdiction has been made without avail in such lower court.
    Original Proceeding by Writ of Prohibition.
    Writ awarded.
    
      Bert F. Fenn and John M. Diohson for relator.
    (1) The New Madrid Circuit Court was without jurisdiction to assume cognizance oyer the subject-matter of the petition for injunction. That petition on its face disclosing that the object of the suit was to restrain defendant Bert Fenn (a) from.further prosecuting a certain suit filed by Bert Fenn against Conran in the St. Louis City Circuit Court; and (b) from filing any other suits against Conran in that circuit. R. S. 1899, sec. 3631; Pettus v. Elgin, 11 Mo. 411; Mellier y. Bartlett, 89 Mo. 134; ScrutcMeld y. Sauter, 119 Mo. 615; Davison v. Hough, 165 Mo. 578. (2) No pleas to the jurisdiction in the lower court are required in any case where the petition on its face discloses want of jurisdiction over the person or the subject-matter; nor is such a plea essential when it would'have been a useless formality, or where the proceeding is ex parte. State ex rel. v. Hirzel, 137 Mo. 447; State ex rel. v. Aloe, 152 Mo. 489; State ex rel. v. Oliver, 163 Mo. 696; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Dearing, 184 Mo. 665; Havermeyer v. Superior Court, 10 L. R. A. (Cab), 627.
    
      John A. Hope for respondent Conran.
    (1) The subject-matter of the case was, therefore, within the jurisdiction of the court, for “the prevention of vexatious litigation and a multiplicity of suits constitute a favorite ground for the exercise of the jurisdiction of equity by way of injunction.” High on Injunctions, sec. 12. The case comes within a class over which the circuit court has jurisdiction, viz: injunction to restrain vexatious litigation, multiplicity of suits. If the case were here on appeal from a judgment of the circuit court overruling relator’s demurrer to the petition, his brief would be appropriate, but in this proceeding it is immaterial whether the petition is perfect or imperfect. It comes within a class of cases over which the court has jurisdiction and that is sufficient. High, Extra Rem., sec. 767a: State ex rel. v. Railway, 100 Mo. 61; Coleman v. Dalton, 71 Mo. App. 14. (2) Prohibition is largely a matter of discretion. Under all the facts in this case the insolent and contemptible discourtesy which relator has shown the circuit court, should bar the relief he now seeks in this court. 16 Ency. Plead. & Prac. p. 1128; High, Extra. Rem., sec. 773; Barnes v. Gottschalk, 3 Mo. App. Ill; State ex rel. v. Laughlin, 9 Mo. App. 486; Forsee v. Gates, 89 Mo. App: 584.
   GOODE, J.

One of the judges of this court in vacation, issued a preliminary writ of prohibition to respondents prohibiting them, and each of them, from further proceeding or entertaining jurisdiction in a certain cause pending in the circuit court of New Madrid county, wherein Bert E. Fenn, Robert g. Rutledge, M1. W. Powell, administrator of the estate of Mal H. Powell, deceased, J. O. More and T. W. Corley, are defendants, and to show cause before this court at the October term why the rule of prohibition should not be made absolute. The respondents appeared and showed cause by their several returns to the preliminary writ, to which the petitioner has filed demurrers. The petitioner Bert F. Fenn, is an attorney residing in the city of gt. Louis. The respondent James V. Conran, is an attorney residing in the city of New Madrid, the respondent Henry C. Riley, is judge of the circuit court of New Madrid county and the respondent J. H. Bishop, is judge of the probate court of said county. On August 3, 1907, James V. Conran instituted a suit for an injunction in the circuit court of New Madrid county against the parties whose names we have given, to-wit; Robert S. Rutledge, Bert F. Fenn, M. W. Powell, administrator of the estate of M. H. Powell, deceased, J. O. More and T. W. Corley. As the circuit court of New Madrid county was not in session at the'time nor the judge of it within said county, Conran applied to the Hon. J. H. Bishop, judge of the probate court for a preliminary writ of injunction, and on Conran’s filing an injunction bond in the sum of |5,000, the writ was granted and the papers certified to the circuit court of the county, where the cause is still pending. It appears from the return of Judge Bishop, that the only knowledge he had regarding the merits of Conran’s cause of action was what appeared in the petition for an injunction. However, notice of the application for the writ had been given to the defendants in the suit against whom the writ was granted, or some of them. It further appears from said return that Judge Bishop had no connection with the matter except to grant the preliminary writ, which was returned with the bond to the clerk of the circuit court as provided by the statutes. [R. S. 1899, secs. 3628, 3629.] It appears from Judge Riley’s return that he had issued no orders, nor taken any steps in the injunction suit at the time of the filing of the petition for the writ of prohibition. The suit was simply pending in the New Madrid circuit court, to be taken up in due course of business and disposed of according to law. Prom the petition filed in this court by Penn for the writ of prohibition, and the petition filed by Conran in the circuit court of New Madrid county for the writ of injunction, we gather all the facts pertinent to the present controversy which are before us. These facts are intricate and, as presented to us, obscure. Conran’s petition in his injunction suit recites that in the year 1903, he and Mal H. Powell (who was a woman and is noAV deceased) had certain business transactions and that the same were evidenced by a contract AArhich is in the possession of Penn; that on June 10, 1903, a new transaction took place which superseded the prior one, and on said date Mal H. Powell executed and delivered to Conran a quitclaim deed, conveying lands in New Madrid county and Pemiscot county, and on the same day Conran executed and delivered to Mal H. Powell a contract in Avriting which is now in the possession of Penn; that thereafter, from time to time for almost a year, Mal H. Powell accepted the benefit of the contract of June 10th Avith the full knowledge of Penn, Avho was her confidential friend and legal adviser ; that some time in 1904 she and Penn being in need of money, made a demand on Conran for the payment of sums Avhich he did not owe; that thereafter Penn tried to coerce Conran to pay such sums by threats, and by stating that Conran had forged a deed on June 10, 1903, and making similar charges; that having failed to extort money from Conran by threats, Mal H. Powell and Penn instituted two suits before a justice of the peace in the city of St. Louis, one for $200 and one for $55; that the actions were tried with the result that judgment was given in both of them for Conran and an appeal taken in one which is now pending in the circuit court of the city of St. Louis. The nature of those actions is not disclosed. Conran’s petition in the injunction suit then proceeds to recite various suits, perhaps four or five others, instituted by Fenn and Mal H. Powell against him in the courts of St. Louis, and also the procurement of an indictment against him. Said petition further recites the institution of actions by Conran against Fenn in the circuit court of New Madrid county, and the filing of a criminal information against Fenn and Mal H. Powell by the prosecuting attorney of said county, charging ihem with criminal slander, of which they were found guilty on the trial in the circuit court, but the judgment was reversed by this court. It is further stated in Con-ran’s petition for injunction that he had instituted a certain other suit against Fenn and Mal H. Powell in New Madrid county, in three counts; one for slander, one “for conspiracy to defraud and indict” Conran, and one for malicious prosecution; that this action went to Ste. Genevieve county on change of venue, where it was tried and judgment obtained by Conran on the counts for slander and conspiracy, he taking a nonsuit on the count for malicious prosecution, but afterwards instituting another action on said ground. It is further stated in the petition for injunction that Fenn and Mal H. Powell appealed from the judgment of the Ste. Genevieve Circuit Court on the counts for slander and. conspiracy, to the Supreme Court, where the cause is now pending.After alleging these various suits and counter-suits and criminal charges, the petition for injunction avers that on July 10, 1907, Fenn filed, another action against Con-ran in the circuit court of the city of St. Louis for slander, which action is still pending. The general purport of Conran’s petition is that the different actions instituted against him by Penn and Mal H. Powell, and subsequently by the administrator of Mal. H. Powell, were malicious and devoid of merit, and are maintained for the purpose of annoying and harassing him, and to extort money from him. It is further charged that the defendant Robert S. Rutledge, an attorney of New Madrid, county, and H. 0. More an attorney of St. Louis, are confederates of Penn in these various proceedings to harass and annoy Conran.and extort money from him. Corley was made a party on an allegation that he was a notary public, and that Penn and his confederates were about to harrass Conran by talcing depositions before said notary in the slander suit which Penn had instituted in the circuit court of the city of St. Louis, on July 10, 1907. It is further alleged that Penn and Rutledge and the other defendants in the injunction suit, would harass Conran by other malicious actions and legal proceedings, unless they were restrained. It is alleged also that the issues involved in Penn’s slander suit against Conran are identical with those involved in the action which Conran instituted against Penn, and were adjudicated by the judgment of the circuit court of Ste. Genevieve county in said case of Conran against Penn and Mal H. Powell; which case is now pending in the Supreme Court. The general purpose of the allegations in Conran’s petition for injunction was to show that Penn and his confederates were harassing and annoying Conran with a multiplicity of suits about the same subject-matter and would attempt to harass him with other suits, although the substance of the issues in all of them would be finally adjudicated in the cause pending in the Supreme Court. It was on this ground of preventing a multiplicity of suits, that a writ of injunction was prayed to restrain the further prosecution of Penn’s slander suit against Conran in the circuit court of the city of St. Louis, and the'institution of other legal suits pending the decision of Conran’s case for slander against Fenn and Mal H. Powell in the Supreme Court. As stated, on this application and the filing of an injunction bond in the sum of $5,000, the judge of the probate court of New Madrid county granted a temporary injunction August- 3, 1907. The following is the effective part of the writ:

“It is ordered that a temporary injunction be granted here, enjoining the said Robert S. Rutledge, Bert F. Fenn and T. W. Corley, their servants, agents and employees and confederates from prosecuting further in any way, manner or form, a case now pending in the circuit court of the city of St. Louis, styled Bert F. Fenn, plaintiff, v. James Y. Conran, defendant, and being based upon allegation of verbal slander and being same case in which plaintiff attempted to take depositions before T. W. Corley on the 25th day of July, 1907, and being the last case filed in the said circuit court of the city of St. Louis, in which service has been had upon the the said James V. Conran, and from the proceeding further with said case until final determination of the case now pending in the Supreme Court of the State of Missouri, on appeal from the circuit court of Ste. Genevieve county, MO'., and from the further annoyance, harassment and aggravation of the said James V. Conran and from the institution of any other further actions against said James Y. Conran touching upon, based upon, or connected with or growing out of the transactions and matters in the petition stated until the final determination of the case now pending and upon which service has been had in the circuit court of the city of St. Louis, until the further order of this or the circuit court of New Madrid county, Missouri, upon the plaintiff filing a bond conditioned according to law, in the sum of five thousand dollars, with W. Y. Conran and S. R. Conran as sureties, which bond is herewith filed and approved; and the clerk of the circuit court of New Madrid county is ordered (to file) the papers herein with the order of this court as in such cases by law required and to forthwith make out certified copies hereof, two copies in manner and form according to law, directed to the sheriff of the city of St. Louis for service upon Bert F. Fenn and T. W. Oorley, respectively, and one 'directed to the sheriff of the county of New Madrid for service upon Robert S. Rutledge.”

It was after the granting of the above preliminary injunction, that Fenn applied for a writ to prohibit the respondents in the present case, to-wit, James V. Con-ran and Henry 0. Riley, judge of the circuit court of New Madrid county and J. H. Bishop, probate judge of the same county, from further proceeding with said injunction proceeding instituted by Conran against Fenn and others. The reason assigned why the writ of prohibition should be made absolute is that the circuit court of New Madrid county has no jurisdiction of said suit and is acting beyond and in excess of its jurisdiction. It is within the jurisdiction of equity, on a proper showing in the proper forum, to prevent by injunction a multiplicity of suits, and a court of equity could not properly be prohibited from hearing a cause which applied for injunctive relief against such a grievance. Nor would it he sufficient to authorize prohibition that there is no merit in the suit for injunction, or that the petition for said writ is demurrable. Those would be matters for the attention of the court of first instance, subject to review by the court of last resort, and would not go to the jurisdiction of the subject-matter of the cause. [State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216, 12 S. W. 661.] It is inconceivable how Conran’s action against Fenñ and Mai H. Powell for slander and conspiracy, can adjudicate the issues in the slander suit by Fenn against him. Con-ran’s suit for slander could have no other basis than the utterance of words defamatory of his character by Fenn and his co-defendant; whereas Fenn’s action for slander could have no basis except the utterance by Conran of defamatory words about Fenn. The petition for injunction charges that still other actions will be brought by the respondents in this case to harass Conran. It is not stated what the nature of those actions will be; but it is charged that they will arise out of the same transactions from which arose the cause of action in Con-ran’s case against Fenn now pending in the Supreme Court, and will be determined by the issues in that case. We are unable to see how this could be true, but possibly it is. Nevertheless, with those matters we are not concerned. Unless the circuit court of New Madrid county deemed that the petition for injunction stated a cause of action, and that this cause was supported by proof, it would no doubt, dissolve the injunction on final hearing. We are concerned to know whether said court has jurisdiction of the injunction suit, or any order has been issued therein in excess of its jurisdiction; for these are the acts which may be prevented by a writ of prohibition. [State ex rel. v. Elkin, 130 Mo. 90, 30 S. W. 333, 31 S. W. 1037. State ex rel. v. Aloe, 152 Mo. 466, 54 S. W. 494.] It will be perceived that the temporary writ granted by the judge of the probate court in the injunction suit, enjoined the defendants from doing two things—namely, instituting more cases against Conran, and prosecuting in any manner Fenn’s slander suit in the circuit court of the city of St. Louis, until the final determination of Conran’s case against Fenn in the Supreme Court. Now, to our minds, it is perfectly clear that in the second part of this order the Honorable judge of the probate court, who in this instance wielded temporarily the authority of a circuit judge, acted in excess of the jurisdiction of the circuit court. The effect of the writ granted is to prevent the prosecution in any manner of a case pending in the circuit court of the city of St. Louis, an independent jurisdiction. Our statutes provide that proceedings for an injunction to stay a suit or judgment, shall be had in the county where the judgment was rendered, or the suit is pending. [R. S. 1899, sec. 3631.] This section of the statutes has been construed to mean that when the main relief prayed is an injunction to restrain the prosecution of a suit, the remedy must be sought in the jurisdiction where the action or suit to be enjoined is pending. And the statute is held not to apply where injunctive relief is asked merely as incidental to some general equitable relief. For instance, where a party files a bill of interpleader to compel rival claimants of a fund to litigate their rights in one suit, an injunction may be granted to prevent one of the defendants from carrying on a suit about the same subject-matter in another jurisdiction. [Davison v. Hough, 165 Mo. 561, 65 S. W. 731.] One main purpose of the injunction in question is to stop the prosecution of the slander suit in the circuit court of the city of St. Louis. That purpose is primary and not incidental to some other relief; and hence an injunction against the prosecution of said suit can be sought only in the St Louis circuit court. [Hayes v. O’Brien, 149 Ill. 410; Beckley v. Palmer, 11 Gratt. (Va.) 625, 631; Mellier v. Bartlett, 89 Mo. 135; Scrutchfield v. Sauter, 119 Mo. 615, 24 S. W. 137.] The answer respondents make to this proposition is that prohibition should be refused because the petitioner has not pleaded the lack of jurisdiction of the circuit court of New Madrid county in said court; the idea being that unless a plea of want of jurisdiction is preferred in the tribunal of first resort and overruled, said tribunal will not be prohibited. There is much authority for this position. [Barnes v. Gottschalk, 3 Mo. App. 111; State ex rel. v. Laughlin, 9 Mo. App. 486.] In those cases the rule is said to be inflexible that want of jurisdiction must be urged without avail in the inferior tribunal, before an application for prohibition will be entertained by a superior court. But the rule has been qualified, if not changed, by recent decisions of the Supreme Court, the purport of which is that when the lack of jurisdiction in the lower court is apparent on the face of the proceedings, it is not fatal to an application for prohibition that no plea to the jurisdiction has been made without avail in said court. This proposition was thoroughly discussed in State ex rel. v. Eby, 170 Mo. 497, 518, 71 S. W. 52, and was also passed on in State ex rel. v. Aloe, 152 Mo. 644. The effect of those, and perhaps of other recent decisions, is that'the refusal to grant prohibition until the lower court has overruled the plea to its jurisdiction, is rather a discretionary matter of practice in the supervising court, than a condition precedent to the issuance of the wrrit; and hence, where want of jurisdiction is palpable, the failure to raise the question below does not necessarily hinder the superior court to interfere, though it may refrain from doing so until'an appeal is made to the lower court. In the present case the learned judge of the circuit court of New Madrid county has had no opportunity to determine the jurisdiction of said court in the injunction suit or whether or not the preliminary restraining order was providently granted; and no doubt he would rule correctly on those questions when they came to be heard. But preventing tiie prosecution of the slander suit by the preliminary writ even in the matter of taking testimony by depositions, is so clear a case of excessive exercise of jurisdiction, that it seems to us the rights of the petitioner will be protected best by prohibiting its further exercise, and that it is our duty, under the later decisions of the Supreme Court, to take that course, rather than refuse redress on a technical point of procedure which can, in no event, affect the petitioner’s substantial right to proceed with the cause he has instituted in the St. Louis circuit court. It ig therefore considered, ordered and adjudged that the writ of prohibition heretofore issued in this cause be made absolute against the further enjoining by the circuit court of New Madrid county, of the prosecution by Penn, or any one in his behalf, of the action for slander instituted by him against Conran in the circuit court of the city of St. Louis.

All concur.  