
    THE STATE ex rel. MONETT MILLING COMPANY v. NEVILLE, Judge.
    Division Two,
    June 26, 1900.
    1. Change of Venue: begudae: disposition oe case. Where a change of venue is in regular order, and the court to which the change is taken has complete jurisdiction, it is the duty of the court to proceed with the cause in accordance with the rules of law applicable to such case, and n'ot to order it stricken from the docket or decline to further proceed with it.
    
      2. Striking Case 3?rom Docket: mandamus. The Supreme Court will issue its writ of mandamus to compel a circuit judge, whose court has jurisdiction of a cause which has been erroneously stricken from the docket before it was finally disposed of, to reinstate the cause and proceed to dispose of it according to law. But it will not interfere with the discretion of that court as to the judgment to be rendered, nor indicate what decision it should render in the pending cause.
    
      Mandamus.
    
    PEREMPTORY WRIT AWARDED.
    
      A. W. Lyon and Davis & Steele for relator.
    (1) Mandamus will lie where court refuses to act and strikes case from the docket. The State ex rel. Bayba v. Phillips, 97 Mo. 331; State ex rel. Huey v. The Cape Gir-ardeau Court of Common Pleas, 73 Mo. 560; The State ex. rel. Schonhoff v. O’Bryan, 102 Mo. 254; The State ex rel. v. Wofford, 121 Mo. 62. (2) The original decree was interlocutory. The rendering of a personal judgment against the Monett Milling Company was deferred for future action and adjudication of the court. No report or confirmation of sale was had and does not dispose of question of cost. A decree is not final unless it decides and disposes of the whole merits of the litigation, and reserves no further questions or directions for the future judgment of the court, and so that it will be unnecessary to bring up the case again for the final decision of the court. Dockhart v. Eutgers, 45 Mo. 132; Butler v. Lee, 33 How. Pr. 260; Mutual Life Ins. Co. v. Sturges, 21 N. J. Eq. 458; Garrish v. Black, 109 Mass. 474; Eorbes v. Tuckerman, 115 Mass. 115; Williams v. Eield, 2 Wis. 422; Dickenson v. Wise, 11 Paige 189. Williamson v. Eield, 2 Barb. 283; Eorgav y. Conrad, 6 How. 204. The decree is not final because it does not grant the relief contemplated by the bill. Bondurant v. Apperson, 4 Mete. 32; Philipps v. Alcorn, 4 J. J. Marsh 38; Johnson v. Everett, 9 Paige 636; Beebe v. Russell, 19 How. 283; McMurty v. Glascock, 20 Mo. 432. Tbe recovery of judgment for tbe mortgage debt or any part of it after foreclosure, opens tbe foreclosure. 2 Jones on Mortgages (1 Ed.), sec. 1214. It is-not now a question as to whether tbe circuit court of Barry county acted correctly or incorrectly in setting aside the original decree. “Tbe only question in such case is, bad tbe court or tribunal power under any circumstances to make tbe order or perform tbe act.” State ex rel. v. McKee, 150 Mo. 233. Jurisdiction of subject-matter means jurisdiction of similar actions. . Rosenheim v. Hartsock, 90 Mo. 365; Postblewaite v. Ghiselin, 91 Mo. 424; Railway v. Railway, 100 Mo. 59.
    
      Geo. Hubhert, D. H. Kemp and Gloud & Davis for respondent.
    (1) Tbe action of tbe respondent in inspecting tbe record and determining the status of tbe case and declaring bis lack of power, seems justified by tbe authorities; notwithstanding each party seemed willing for him to act, provided tbe act were tbe one desired by tbe party. “Tbe court takes judicial notice of tbe state of a case as shown by its own records.” Pears v. Riley, 148 Mo. 60; Parlin v. Hord, 145 Mo. Ill; 1 Bailey on Juris., sec. 10. Tbe record must determine tbe elements of supposed jurisdiction, and if it appear from tbe record that those elements or any of them were lacking, tbe previous action or decision of tbe court must be treated as void, and tbe question may be raised at any time or place. Presbyterian v. Mcllhinney, 61 Mo. 540; McClanaban v. West, 100 Mo. 309; Laney v. Garbee, 105 Mo. 355; Laney v. Sweeney, 105 Mo. 360; Russell v. Grant, 122 Mo. 161; Stamps v. Bridewell, 57 -Mo. 22; Brown v. Woody, 64 Mo. 547; Pisher v. Siekman, 125 Mo. 165; Hewett v. Weatberby, 57 JVIo. 276; State v. St. Louis, 1 Mo. App. 503. (2) Tbe original judgment of tbe Barry circuit court was a final judgment in its entirety and closed tbe case, so that it could no longer be said to be a pending action. Nor could that judgment be disturbed but by bill or petition in equity or by statutory motion in tbe nature of writ of error coram vobis, to neither of wbicb classes of proceedings does tbe motion to set aside tbe judgment in question appear to belong. Tbe decree of foreclosure passed upon and settled all tbe rights of all the parties, and nothing was left for tbe future but to give tbe decree effect, by executing tbe powers described and adjudged thereby. For in this State a judgment is a finality whenever it terminates tbe litigation between tbe parties on tbe merits of tbe case. E. S. 1889, sec. 2206; State ex rel. v. Woodson, 138 Mo. 513; 1 Bib. on Judgt., secs. 43, 44-48; 1 Erem. Judgt., sec. 22 et seq.; Myers v. Manny, 63 Ill. 211; Wintbrop v. Meeker, 109 IJ. S. 180; 3 Sup. Ct. Eep. Ill; Grant v. Phoenix Co., 106 IJ. S. 431; 1 Sup. Ct. Eep. 414; Mills v. Hoag, 7 Paige 18; 31 Am. D. 271; Teaff v. Hewitt, 1 Ohio St. 511; 59 Am. Dec. 634; Neall v. Hill, 16 Cal. 145; 76 Am. Dec. 508; Morris v. Morange, 38 N. Y. 172.
   BURGESS, J.

This is an original proceeding by mandamus begun in this court tbe purpose of wbicb is to compel tbe respondent, judge of tbe circuit court of Greene county, to reinstate and to proceed with tbe trial of the cause of A. J. Webber v. Monett Milling Company, H. J. Webber, Submit M. Mills, Harry N. Mills and Alberta B. Mills, wbicb is now depending in said circuit court of Greene county on a change of venue from tbe circuit court of Barry county where it was begun, but wbicb said suit tbe respondent before tbe institution of this proceeding ordered and caused to be stricken from the docket and declined to entertain jurisdiction thereof and to proceed therewith.

On the 20th day of February, 1900, there was duly issued from this court an original writ of mandamus, directed to said Neville, as judge of the circuit court of Greene county, commanding him to forthwith set aside the order striking said cause from the docket, and to proceed to hear said cause, or that he appear and show cause before Division Two of the Supreme Court on the 10th day of April, 1900, why he should not do so.

On May 17, 1900, the respondent made return to said writ as follows:

“1st. That on the first day of the May term of the above circuit court, on the 14th day of May, 1900, the respondent, as presiding judge thereof, ordered and caused the case of A. J. Webber, plaintiff, v. Monett Milling Company et al., defendants, to be duly docketed, with the purpose and intention to exercise the jurisdiction of the respondent’s court over the said cause and its subject-matter, on the record and pleadings therein.
“2d. That in pursuance of said purpose, respondent has received and filed in his sáid court the second amended answer of the relator as defendant company and amended motions of plaintiff and other defendants, and received the resignation of J. W. Vance as receiver and appointed a new receiver-in his stead, and directed care and lease of the mill property in question, by consent of the parties, for the coming year.
“3d. That the respondent and his said court stand ready to and will exercise such further power and jurisdiction, according to his best judgment, as the law seems to require, upon the issues presented or to be presented by the parties under their pleadings, and has proceeded to hear and is ready to pass upon á motion that will determine the cause.
“4th.. That respondent does not understand tbat be is required to decide in any particular way or to follow any special course in passing upon tbe issues or disposing of tbe cause by bis legal judgment; and prays specific directions if any be intended by this Honorable Court, still waiving, however, technical writ and formal service thereof.
“Counsel for tbe parties disagree as to tbe directions; defendant’s claiming tbat tbe order is to proceed to bear tbe case on its merits, plaintiff’s counsel contending otherwise.”

Tbe action of Webber v. Monett Milling Company and others was begun in tbe circuit court of Barry county on tbe 6th day of February, 1897. It was alleged in tbe petition tbat plaintiff was tbe owner and assignee of certain promissory notes aggregating tbe sum of $8,500, theretofore executed by tbe Monett Milling Company to one A. D. Butler, and secured by deed of trust on said milling company’s mill plant at Monett, Missouri, in which H. J. Webber was named as trustee, and tbat tbe said defendants, tbe Millses, claimed tbe title to tbe land on which tbe mill stood, and tbat there were other liens against said property, and prayed judgment against tbe said Monett Milling Company for tbe amount of said notes, and a foreclosure of said deed of trust.

On the 7th day of April, 1897, during tbe regular term of tbe Barry circuit court, T. H. Jeffries who was then president of tbe milling company, filed an answer to said petition denying generally all tbe allegations therein contained. On' tbe next day following and during tbe same term, a cross bill was filed in said cause by tbe defendant Millses therein, in which they alleged tbat they were tbe owners of tbe land upon which tbe mill was located, and in effect tbat they bad sold tbe land to tbe milling company for tbe sum of $1,500 and asked judgment for said amount, and that it be declared a vendor’s lien against said premises.

Thereafter and on tbe same day a decree was rendered in said cause for tbe sale of said premises, providing for tbe distribution arising from sale among certain creditors and judgment rendered in favor of tbe Millses in tbe 'sum of $1,500 wbicb was declared to be a vendor’s lien against tbe premises. Said trustee H. J. Webber was authorized by and empowered by tbe decree to sell tbe premises.

On tbe 13th day of April, 1898, A. J. Webber tbe plaintiff, filed bis motion to set aside said judgment and decree which being overruled be appealed tbe case to tbe Supreme Court where it was affirmed on tbe 21st day of February, 1899, because of tbe failure of tbe appellant to prosecute bis appeal. Thereafter on tbe 9th day of March, 1899, tbe said milling company filed in tbe circuit court of Barry county its amended answer to plaintiff’s petition.

On tbe 16th day of October, 1899, at tbe October term of said court, plaintiff Webber filed bis motion in said cause asking that tbe judgment of tbe court theretofore made setting aside tbe original decree be set aside and that tbe cause be stricken from tbe docket.

On tbe 30th day of October, 1899, a similar motion was filed on tbe part of said Millses.

And afterwards, on tbe 1st day of November, 1899, tbe court overruled plaintiff’s said motion and sustained defendant Millses’ motion as follows:

“Now at this day tbe motion to set aside tbe order of tbe court setting aside the judgment heretofore rendered herein is taken up and tbe court finds from an examination of tbe records in this cause, including tbe bill of exceptions, that tbe plaintiff appeared to tbe proceedings bad in this court to set aside said judgment and appealed from said order and that tbe judgment of tbe court in said appeal was affirmed and tbe court determines plaintiff is bound by said order and tbe motion of plaintiff to set aside tbe same is overruled.”

Tbe court further fiuds that the defendant Millses bad no notice of said motion and did not appear thereto and as to said defendants the said order setting aside said judgment is nugatory and of no effect.

Immediately thereafter plaintiff filed his application for a change of revenue which was thereafter awarded to Greene county, where a complete transcript of the record and papers in said cause were sent by the cleric of the circuit court of Barry county and the said cause was docketed in said last mentioned court at the January term thereof, 1900. Plaintiff and said defendant Millses filed motions in said cause and court, asking that the said cause be stricken from the •docket, whereupon the said court refused to pass upon said motion, or to take any action in said cause, or to have anything to do therewith, and ordered the same stricken from the docket by the following order entered of record, to-wit: “Now at this day on an inspection of the record, the court ascertains that it has no jurisdiction of anything therein contained and orders this cause stricken from the docket and the court and the judge thereof declines and refuses further to proceed.”

It appears from the return of the respondent that after the alternative writ was issued to him, to-wit, on May 14th, 1900, he as presiding judge of the circuit court of Greene county, caused said cause of Webber v. Monett Milling Co. et al., to be docketed, with the purpose of exercising jurisdiction of said court over it, and the subject-matter involved therein, and, that he as judge of said court now stands ready and willing to exercise such further power and jurisdiction according to his best judgment as the law seems to require upon the issues presented, or to be presented by the parties under théir pleadings, and is ready to pass upon a motion that will determine the case, but we, are not advised as to - the character of the motion, or by whom presented.

The change of venue was in regular order, and it is clear that when the transcript of the record was filed in the office of the clerk of the circuit court of Greene county that that court had full and complete jurisdiction of the cause, and that it was its duty to proceed therewith in accordance with the rules of law applicable in such cases, and not to order the case stricken from the docket, and to decline and refuse to further proceed with it, as it was its duty to do.

But as to what decision the court shall render upon any question that may be involved in the case, or what course it . shall pursue in disposing of the cause by its legal judgment, it is not our province to say, for while under the Constitution of this State (art. 6, sec. 3), “a general superintending control” is given the Supreme Court over the circuit courts and it may require them by the writ of mandamus to reinstate a cause which has been erroneously stricken from the docket, and to proceed therewith (State ex rel. Huey v. Cape Girardeau Court of Common Pleas, 73 Mo. 560), its discretion or judgment must be left free to act and can not be controlled for any particular purpose or in any particular direction.

Erom an inspection of the record it appears that the case has not been finally disposed of upon its merits, and as the Greene Circuit Court has jurisdiction of it, it should not be dismissed because of the want of such jurisdiction. We therefore award a peremptory writ.

Gantt, Q. J., and Sherwood, J., concur.  