Opinion
No. 41685.
December 11, 1950. Motion for Rehearing and to Transfer to Banc Overruled in Per Curiam Opinion filed, March 12, 1951.
A motion to allow attorneys' fees against intervenors was not served upon intervenors, so the judgment thereon denied due process and was void. The Supreme Court had jurisdiction of the appeal.
1. APPEAL AND ERROR: Constitutional Question Involved: Jurisdiction of Supreme Court. The appeal involves a constitutional issue and the Supreme Court has jurisdiction.
2. PROCESS: Constitutional Law: Attorney and Client: After-Judgment Motion for Attorneys' Fees Against Interpleaders Not Served: Due Process Denied. After judgment had been entered in a consolidated cause a motion was filed for the allowance of attorneys' fees against appellants who had intervened in one of the actions prior to the consolidation. The allowance of this after-judgment motion without service upon appellants constituted a denial of due process and was void.
3. APPEAL AND ERROR: Motion to Dismiss Overruled. A motion to dismiss on the ground that the appeal should have been taken to the Kansas City Court of Appeals is overruled.
On Motion for Rehearing and to Transfer to Banc.4. APPEAL AND ERROR: Constitutional Law: Ruling on Federal Constitution Withdrawn. The ruling on the federal constitution is not necessary to the decision and is withdrawn.
Appeal from Jackson Circuit Court: Hon. James W. Broaddus and Hon. Joe W. McQueen, Judges.
REVERSED AND REMANDED ( with directions).
Marcy K. Brown, Jr., for appellants; Joseph R. Miniace of counsel.
(1) The court had no jurisdiction to render the judgment for attorney's fees and the judgment and execution are void because this is either a common law writ of certiorari or judicial review of actions of an administrative body, and extraneous matters dehors the record, or equitable relief for matters dehors the record, cannot be engrafted thereon. Certiorari reaches only to jurisdiction and does not deal with merits of a controversy. State ex rel. Railway Co. v. Bland, 67 S.W. 580; State ex rel. Kennedy v. Remmers, 101 S.W.2d 70. (2) It is narrow in scope and inflexible in purpose, all that can be done is either to quash or refuse to quash the proceedings below. State ex rel. Manion v. Dawson, 225 S.W. 97; State ex rel. St. Louis County v. Evans, 139 S.W.2d 967. (3) Facts outside the record cannot be brought to the attention of the court. State ex rel. Gloyd v. Gilbert, 148 S.W. 125; State ex rel. McCune v. Carter, 214 S.W. 180. (4) No questions of fact, but only questions of law arising on the face of the record are presented. State ex rel. Police Retirement System v. Murphy, 224 S.W.2d 68; State ex rel. Miller v. O'Malley, 117 S.W.2d 319; State ex rel. Renner v. Alford, 122 S.W.2d 905. (5) Allowance of bill of costs or attorney fees based on extraneous matter in record are not allowable. State ex rel. Alton R. Co. v. Shain, 143 S.W.2d 233. (6) The Judicial Review Act only permits a reviewing court to act as such. It can try no new claims or engraft equitable or other new and extraneous proceedings on the original case, but only render judgment modifying or reversing, or may order reconsideration by the reviewed tribunal and order it to take such action as is proper. R.S. Mo., sec. 1140.101, 1140.110d, f, g, h, i; State ex rel. Police Retirement System v. Murphy, 224 S.W.2d 68. (7) Attorney's fees in a law case are not allowable unless provided for by statute. Prudential Ins. Co. v. Goldsmith, 192 S.W.2d 1; State ex rel. v. James, 115 S.W.2d 225; Milne Lumber Co. v. Railroad Co., 57 S.W.2d 732; Leslie v. Carter, 187 S.W.2d 1196. (8) The alleged interpleader motion which is the only basis upon which the judgment for attorney's fees rests, is an extraneous proceeding, outside the record, involving an alleged fund (slot machines) which was never involved in the original action, is engrafted on and strictly dehors the record in the case under review. Such alleged interpleader motion is neither an interpleader, which is regulated by the Code of Civil Procedure, nor in conformity therewith; no adverse claims were involved, no possible double or multiple liability existed and no order of interpleader, which is jurisdictional, was ever made; nor did it enter the voluntary appearance of the trustees of the lodge, or purport so to do. It has no legal force or effect. It is the only basis upon which the judgment for attorney's fees rests, and under the foregoing authorities attempts to present a matter of which the court had no right or jurisdiction to take judicial notice or base upon it an order or judgment. R.S. 1939, sec. 847.18; Granite Bituminous Paving Co. v. Strange, 8 S.W.2d 1087; John A. Moore Co. v. McConkey, 203 S.W.2d 512; Barr v. Snyder, 219 S.W.2d 305; Buerger v. Costello, 226 S.W.2d 610. (9) A legal bill of interpleader would only permit the allowance of attorney's fees for the party bringing the action, not against him. John A. Moore Co. v. McConkey, 203 S.W.2d 512. (10) If such interpleader motion should be considered an intervention under R.S. 1939, Sec. 847.21, no statutory requirements were followed, no order permitting intervention was made and it still would not be permitted to be engrafted on an action such as this. R.S. 1939, sec. 847.21; Authorities cited, supra. (11) The judgment purports to bind and place a lien upon personal property belonging to the lodge trustees and board of governors, which was never under the court's jurisdiction and to render a personal judgment against unnamed trustees, who were never parties to the action, or served with process or who appeared in the action until after the judgment was rendered, and only then for the purpose of having it set aside. The execution also levied on cash and trust funds in the custody of such trustees or board of governors not naming any one of them. Under such circumstances the judgment and execution constitute a denial of, and a deprivation of property without due process of law, in violation of Article 1, Section 10, of the Constitution of the State of Missouri and the 14th Amendment to the Constitution of the United States. Shelly v. Kraemer, 68 S.Ct. 836; Brinkerhoff-Faris Trust Savings Co. v. Hill, 50 S.Ct. 451; Conway v. Robinson, 178 S.W. 154; Cornet v. St. Louis County, 240 S.W. 107; Union Cemetery Assn. v. Kansas City, 161 S.W. 261; Ussery v. Haynes, 127 S.W.2d 410; Badger Lumber Co. v. Goodrich, 184 S.W.2d 435; Imse-Schilling Sash Door Co. v. Kellems, 179 S.W.2d 910.
Martin J. O'Donnell for respondents.
(1) Statement as to jurisdiction of this court. Due process is not involved, interpleader enters appellants' appearance for every purpose. (2) The new Civil Code of Civil Procedure, Sec. 37, not only permits but encourages the disposition of the entire litigation in same suit.
This action involves an allowance for attorneys' fee to W.H.H. Piatt and Percy C. Field, respondents here, of $2,500, subject to a credit of $500, against the "Board of Trustees of Kansas City Lodge No. 26 Benevolent and Protective Order of Elks" and "Kansas City Lodge No. 26 Benevolent and Protective Order of Elks," appellants here. Appellants contend the judgment is void for a number of reasons, including the deprivation of property without due process of law.
The Benevolent and Protective Order of Elks is a national fraternal institution and a local lodge in Kansas City, Missouri, is Lodge No. 26, which occupies two adjacent buildings; one at 120 East 7th street and the other at 630 Grand avenue.
Clarence A. Perrine was employed under a contract by Lodge No. 26 as "Club Manager," subject to supervision by the Board of Trustees, for a period of five years to be ended October 1, 1946. In 1946 the contract was extended for an additional five years.
A permit, lapsing June 30, 1948, had been issued by the Director of Liquor Control for Kansas City to Clarence A. Perrine to sell liquor by the drink at retail at 120 East 7th street. We understand these permits were issued only to an individual.
In April, 1947, this liquor permit had been suspended for ten days on account of gambling paraphernalia being on the premises.
In December, 1947, the police searched the premises and found a number of unused slot machines stored at 630 Grand avenue.
Perrine, respondents' witness, testified that two slot machines were being operated in December, 1947; that after the raid he was placed in jail; that he telephoned to Joseph N. Miniace and Harry E. Whitney to get him out; that he engaged them as counsel for the Elks Club; that he was charged in the Municipal court with the possession of gambling equipment, the operation of gambling equipment, and the operation of a gambling house; that he was fined $250 on each of two charges, and $500 on the other charge; and that all three cases were appealed.
The Director of Liquor Control on December 17, 1947, revoked the aforesaid permit issued to Perrine to sell liquor.
On December 26, 1947, upon application, a writ of certiorari was issued out of the circuit court in a cause entitled "State of Missouri at the relation of Clarence A. Perrine, Secretary Elks Club, plaintiff, vs. Joseph F. Keirnan, Director of Liquor Control for Kansas City, Missouri," et al., defendants. The writ recited that by a petition of "Clarence A. Perrine" it appeared said defendants had exceeded their jurisdiction in the revocation of said liquor permit et cetera; and "that all proceedings be stayed until the further order of this court."
The Grand Lodge of the Elks entered upon the scene, suspended the charter of Lodge No. 26, removed its officers, including [158] the Trustees, appointed a reorganization committee to take charge, and directed that the contract between Lodge No. 26 and Perrine be cancelled. Perrine was removed as Secretary and as Manager on April 6, 1948. Others were appointed as Secretary and as Manager, and a Board of Governors was substituted for the Board of Trustees of Lodge No. 26. Perrine admittedly ceased to be Secretary of the Lodge on April 1, 1948, but claimed he continued as Manager until June 2, 1948.
Upon Perrine ceasing to be Secretary Miniace and Whitney, who were members of Lodge No. 26, withdrew on April 12, 1948, as attorneys of record in the pending proceedings.
Perrine asked Piatt and Field, who were also members of Lodge No. 26, to appear as attorneys. Piatt asked for a $500 retainer.
Under the by-laws all bills against the Lodge had to be approved by a majority vote at a regular lodge session before the Exalted Ruler, the Secretary, the Treasurer, or the Chairman of the Board of Trustees were authorized to make payment. However, liquor was delivered "C.O.D.," and checks, signed in blank, were left with Perrine for purchases of liquor.
A few days, three to five, after Perrine first saw Piatt and Field. Perrine took Field to the office of the Club, wrote a check for $300 and gave it to Field. Perrine said he would pay the $200 balance on the retainer as soon as he made another deposit. These checks were drawn on the account of Lodge No. 26 and paid to Piatt and Field. The $300 check was dated May 1, 1948, and signed "Chas. Louthain Exalted Ruler. Clarence A. Perrine, Sec'y." The $200 check was dated May 14, 1948, and signed "Clarence A. Perrine. Harvey W. Hedrick, Acting Sec'y." Notwithstanding the proceedings taken by the Lodge against him in April, Perrine testified he had the right to sign checks as "Manager" up to June 2, 1948, although he did not sign either check in that capacity.
Piatt and Field entered their appearance as attorneys for "plaintiff" on May 5, 1948. They claim their services were on behalf of said Lodge No. 26; whereas on behalf of the Lodge it is contended they represented Perrine.
There was evidence an understanding was reached with the City authorities that if Perrine would resign or be discharged all proceedings would be dropped. Perrine refused to discontinue as Manager. Whitney and other lodge members, as well as attorneys representing the City, informed Piatt and Field of said agreement. An Assistant City Counselor testified that he fully intended to dismiss the prosecutions, and that he told Mr. Field the slot machine prosecutions were against Perrine. There was also testimony that, within a few days after Piatt and Field entered the case, they were informed by Whitney and other members of the lodge that they did not represent the Lodge and would have to look to Perrine for their compensation, which was denied by Piatt and Field. The matter of employing Piatt and Field was never taken up with the Lodge and the $300 and $200 checks paid to them were never taken up or approved by the Lodge.
On May 20, 1948, Piatt and Field filed a "Motion of plaintiff herein, Clarence A. Perrine, to quash" the return to the writ of certiorari et cetera. Paragraph "5" of said motion contained allegations, among others, to the effect the Lodge was a charitable organization and a license fee for the operation of a bar thereat could not be legally exacted.
On June 29, 1948, Mr. Whitney and James E. King, as "members of Kansas City Lodge No. 26 of the Benevolent and Protective Order of Elks and attorneys for the Board of Trustees," filed a so-called "Interpleader" to said motion to quash, asking that the certiorari proceeding be dismissed so far as said Lodge was concerned, and alleging that Perrine was no longer the Secretary, or Manager, or an employee of said Lodge; that a trial would not clarify any issue involving said Lodge; and, denying statements in the aforesaid paragraph 5, alleged that said Lodge was willing to purchase the necessary license for the operation of said bar and did not come strictly under the law governing charitable institutions.
[159] The bar continued to operate under the stay order issued in connection with the writ of certiorari. On August 12, 1948, the Director of Liquor Control of Kansas City issued a permit to sell liquor by the drink at 120 East 7th street, to Edward P. Curtis, who had been appointed Manager.
An application by Piatt and Field, as "Attorneys for Clarence Perrine," to transfer to Division No. 6 Causes Nos. 3779, 3780 and 3781, the slot machine prosecutions against Perrine, for consolidation with Cause No. 525, 545, the certiorari proceeding, was filed and sustained on September 10, 1948, said application having been consented to only by the Assistant City Counselor in charge of the slot machine cases.
On September 16, 1948, Piatt and Field filed a motion for Clarence A. Perrine "to sustain motion to quash" theretofore filed, and to dismiss said Causes Nos. 3779, 3780 and 3781. Paragraph "9" thereof alleged that the "Elks Club" had filed an interplea and thereby entered the appearance of its Trustees for all purposes, including the allowance of reasonable fees to Piatt and Field for services since June 29, 1948.
On September 27, 1948, the aforesaid motions of May 20, and September 16, 1948, were sustained; and a judgment was entered quashing the proceeding of December 17, 1947, by the Director of Liquor Control, and quashing the judgments of the Municipal court in Causes Nos. 3779, 3780 and 3781, each entitled "Kansas City vs. Clarence A. Perrine," and the court also ordered that all effects taken from the building at 630 Grand avenue "be returned to B.P.O.E. Trustees there."
The police released the slot machines to Lodge No. 26 on or before February 8, 1949.
Thereafter, on May 20, 1949, Piatt and Field, respondents, filed their motion for the allowance of a reasonable attorneys' fee; and on June 20, 1949, the court found that $2,500 was a reasonable fee, subject to a credit of $500, and that respondents had a lien on the slot machines for said judgment debt, and also entered a general judgment for $2,000 against "said Board of Trustees of said Kansas City Lodge No. 26 Benevolent and Protective Order of Elks, and said Kansas City Lodge No. 26 Benevolent and Protective Order of Elks."
No service of said motion for attorneys' fee upon appellants is shown of record. It appears that service was attempted by a registered letter, dated May 20th and received May 21 or 23, 1949, addressed to appellants, stating: "Enclosed, for your information, Motion, this day filed and returnable June 10, 1949, 9:30 A.M. Very truly, Martin J. O'Donnell." The only testimony on the issue is that no motion of any nature was enclosed with the letter. As a result, no appearance was made in opposition to the motion and judgment was by default.
A motion, filed June 21, 1949, to set aside said judgment was overruled, after hearing, on August 12, 1949.
This was followed by an application for leave to file a motion to set aside the judgment or for a new trial on behalf of named individuals as constituting the "last Board of Trustees" of said Lodge No. 26, and named individuals as constituting the "present Board of Governors" of said Lodge No. 26 (an appearance having been theretofore entered on behalf of said Boards), which motion was denied.
The individuals constituting the Board of Trustees and the Board of Governors aforesaid appealed on August 20, 1949.
A general execution issued on said judgment on October 5, 1949. The Board of Governors aforesaid filed a motion to quash said execution. On October 28, 1949, respondents' motion to strike said motion to quash was sustained. The Board of Governors appealed from said order.
If we have jurisdiction of this appeal, it is because of some constitutional issue. Respondents say, without citation of authority: "Due process is not involved, Interpleader enters appellants' appearance for every purpose." Appellants contend the judgment and execution constitute a denial and a deprivation of property without due process of law (Mo. Const. 1945, Art. I, § 10; U.S. Const., Amend. 14) in that the judgment purports to place a [160] lien upon personal property belonging to the Board of Trustees or the Board of Governors of the Lodge which was never under the court's jurisdiction, and purports to render a personal judgment against unnamed Trustees, who were never parties to the action, who were never served with process or appeared in the action until after judgment, and then only to have it set aside; and that the execution was levied on trust funds to the credit of such Board of Trustees or Board of Governors without naming any one of them. Under the authorities, jurisdiction is here. Badger Lumber Co. v. Goodrich, 353 Mo. 769, 184 S.W.2d 435, 436 [1].
Our Civil Code contemplates that process shall be served upon parties against whom a claim is made, together with a copy of the petition setting forth such claim. Laws 1943, pp. 365, 366, §§ 23, 27, p. 357, § 5; Mo. R.S.A., §§ 847.23, 847.27, 847.5. The instant record discloses that there was no service upon appellants of the motion for an allowance to respondents of a fee. This after-judgment motion asserted the only claim made against appellants. The action of courts in depriving parties of substantive rights without providing adequate notice and opportunity to defend constitutes a denial of due process of law under the Federal and State constitutions. Shelley v. Kraemer, 334 U.S. 1, 16; 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441; Brinkerhoff-Faris T. S. Co. v. Hill, 281 U.S. 673, 680, 50 S.Ct. 451, 74 L.Ed. 1107; Conway v. Robinson (Mo.), 178 S.W. 154, 157[2]; Cornet v. St. Louis County (Mo.), 240 S.W. 107, 111[4, 5]; Ussery v. Haynes, 344 Mo. 530, 127 S.W.2d 410, 414[4]; Union Cemetery Ass'n v. Kansas City, 252 Mo. 466, 161 S.W. 261, 273[9]. The case of Conrad v. State Industrial Comm., 181 Okla. 324, 73 P.2d 858, 860[4], applied the rule to the allowance of an attorney's fee.
Respondents base their right to proceed by motion upon the so-called "Interpleader" of June 20, 1948, in the certiorari proceeding. It was thereafter that the application to consolidate the slot machine prosecutions with the certiorari proceeding was filed and sustained without notice to appellants. Consult, with respect to the consolidation of causes, Laws 1943, p. 384, § 97(a), Mo. R.S.A., § 847.97(a) (reenacting § 1904, R.S. 1939, Mo. R.S.A.); Anderson v. Gaines, 156 Mo. 664, 668(I), 57 S.W. 726, 727(1); Carr, Missouri Civil Procedure, Vol. I, p. 15, § 7, f, p. 795, § 795; Vol. II, p. 558.
We have stated the facts in some detail and need not develop the several additional grounds advanced for setting aside the judgment.
This cause was argued and submitted here on September 21, 1950. Thereafter, on September 29, 1950, respondents filed a motion to dismiss on the ground mainly that appellants, by appealing to this Court instead of the Kansas City Court of Appeals, "have attempted to use this Court as a means for delaying the payment of the debt due to respondents during their lifetime." The motion is without merit and is overruled.
It follows that the judgment against appellants and in favor of respondents for attorneys' fee may not stand. Accordingly, the judgment is reversed and the cause is remanded with instructions to set aside said judgment and to quash the execution issued thereon against appellants. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.
ON MOTIONS FOR REHEARING AND TRANSFER TO COURT EN BANC.
Respondents have filed motions for rehearing and for transfer to Banc.
Respondents ask that the cause be transferred to Court en Banc on the ground "a federal question is involved." 1945 Mo. Const. Art. V, § 9. The essential ground of our holding was the failure to comply with statutory requirements (Laws 1943, p. 357 et seq., §§ 5, 23, 27; R.S. 1949, §§ 506.100. [161] 506.110, 506.150) covering notice to a party of a claim or of a new or additional claim against him. The statement that such failure resulted in a denial of due process under the Federal and State constitutions was advanced arguendo in support of the underlying ground for the holding and was not essential thereto. The reference to the Federal constitution may be deleted without affecting the result in any degree; and there is no federal question involved in a jurisdictional sense of sufficient substance to necessitate a transfer of the cause to Court en Banc. Consult Wilson Co. v. Hartford Fire Ins. Co., 300 Mo. 1, 254 S.W. 266, 286[28]; Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381, 387[8]; McAllister v. St. Louis Mer. Br. Term. Ry. Co., 324 Mo. 1005, 25 S.W.2d 791, 793 [1, 2].
We have carefully reviewed the motion for rehearing. The pertinent issues there presented are sufficiently covered in the opinion.
The motions for rehearing and for transfer to Banc are overruled.