Opinion
April 19, 1933.
1. PROHIBITION: Retirement of Judge. A preliminary rule in prohibition does not abate by the retirement of a circuit judge against whom it is directed "as judge of said court" and not as an individual, which retirement the Supreme Court judicially knows.
2. CONTEMPT: Jurisdiction. The circuit courts are in the first instance vested with power to decide questions of contempt, subject to a right of review under a writ of habeas corpus.
3. CONTEMPT: Jurisdiction: Prohibition. While the Supreme Court will entertain prohibition of a contempt proceeding in a proper case, where a judge of a circuit court cited lawyers for contempt and retired from office pending the proceeding, the question of prejudgment is eliminated and the Supreme Court will deny prohibition against that circuit court.
PROVISIONAL RULE DISCHARGED.
Fred L. Williams, Lon O. Hocker and Rhodes E. Cave for relators.
(1) A careful review of the authorities will not disclose any cases in which it has been held that the respectful filing of a pleading or motion which may reasonably be termed as pertinent to the issues will be regarded as contemptuous. In re Howell and Ewing, 273 Mo. 150; Milton v. People, 9 L.R.A. 566; Clair v. State, 28 L.R.A. 367; Tjosevig v. United States, 255 F. 5; Adams v. Gardner. 176 Ky. 252; State v. Nunez. 147 La. 394; State v. Jasper, 78 W. Va. 385; In re Cottingham, 6 Colo. 335; Huggins v. Field, 196 Ky. 501. (2) The prejudice of the trial court, as displayed by his conduct, remarks or demeanor, has been repeatedly held to be a ground for a new trial. And the setting forth, as here, in a motion for new trial of such alleged prejudice is, therefore, unquestionably pertinent and cannot constitute contempt or give the court jurisdiction or authority to punish for contempt. State v. Teeter, 239 Mo. 475: Hutchinson v. Richmond Safety Gate Co., 152 S.W. 52; Wair v. American Car Fdy. Co., 285 S.W. 155; Egan v. United Rys. Co., 227 S.W. 126; Rucker v. Southern Ry. Co., 226 S.W. 69; Kribs v. Jefferson City Light Co., 215 S.W. 762; Rose v. Kansas City, 102 S.W. 578; State v. Davis, 225 S.W. 707; Grimm v. Manhattan Co., 149 Mo. 181; Watson v. Aronberg, 15 S.W.2d 356. (3) The contempt sought to be charged in the citation is, if anything, direct or criminal contempt, and, being so, no appeal would lie from any judgment entered thereunder. In re Howell and Ewing, 273 Mo. 110. (4) In contempt proceedings, there being no appeal, prohibition will issue in proper cases where the trial court is either without jurisdiction or has exceeded or threatens to exceed its jurisdiction or authority. State ex rel. v. Bird, 253 Mo. 569; State ex rel. Kaiser v. Miller, 316 Mo. 372; State ex rel. v. Withrow, 133 Mo. 500; State ex rel. Larew v. Sale, 188 Mo. 493 (where prohibition issued in a disbarment proceeding); State ex rel. Powhatan Coal Co. v. Ritz, 9 L.R.A. (N.S.) 1225; State v. Circuit Court, 38 L.R.A. 554; Smith v. Kimbal, 289 P. 588; Van Dyke v. Superior Court, 211 P. 576; Russell v. Field, 232 S.W. 375; State ex rel. Petersen v. Superior Court, 121 P. 836. (a) And the writ of prohibition is as available to keep a court within the limits of its power and authority in a particular proceeding as it is to prevent the exercise of jurisdiction over a cause not given by law to its consideration. 22 R.C.L. p. 19; St. L. Railroad Co. v. Wear, 135 Mo. 230; State v. Riley, 203 Mo. 175; State v. Muench, 217 Mo. 124; State v. Bright, 224 Mo. 514. (b) The citation for contempt clearly shows that the charges therein contained can constitute no contempt and that the trial court is, therefore, threatening to exceed its jurisdiction, power and authority in this particular case and the writ of prohibition should be available to keep the court within the limits of its power and to prevent the entry of a void order from which there is no appeal or other adequate remedy. (c) Habeas corpus is not an adequate remedy. Any application for such a writ which does not show actual imprisonment must be denied. And a remedy which requires a party to submit to arrest under a void order before he can have relief cannot be adequate. Van Dyke v. Superior Court, 211 P. 576; State ex rel. Ashbaugh v. Circuit Court, 38 L.R.A. 554. (5) This court has jurisdiction in prohibition in all cases where appeal or other remedies are inadequate, and even in those cases where it would not have jurisdiction on appeal. State ex rel. v. Ebe, 174 Mo. 497; State ex rel. Kansas City v. Coon, 316 Mo. 558.
Original proceeding in prohibition. Relators, lawyers of the city of St. Louis, seek to prohibit the circuit court of said city, Division No. 4, from proceeding further with a contempt case pending in said court.
In due course, a motion for a new trial was filed by relators in a certain cause then pending in said circuit court. Thereafter, said court, of its own motion, entered a citation of record, which was served on relators. The citation charged that said motion for a new trial contained excessive and contemptuous language concerning the conduct of the judge of said court during the trial of said cause. It then commanded relators to appear in said court and show cause why each of them should not be punished as for contempt.
On the petition of relators this court's provisional rule in prohibition was issued and served on respondent, the then presiding judge of said division. Respondent, by his return, challenges the jurisdiction of this court to determine the question presented by relators' petition and the provisional rule. He further alleges in the return that relators' petition does not state facts sufficient in law to authorize the issuance of the rule. Relators moved for judgment on the pleadings.
It should be stated that respondent suggests his retirement as judge of the Circuit Court of St. Louis. We judicially know of his retirement. However, the proceeding does not abate, for the rule was directed against respondent "as judge of said court" and not against him individually. [38 C.J. 858, 859; 2 Spelling's Extraordinary Remedies (2 Ed.) p. 1467; Commonwealth v. Latham, 8 S.E. (Va.) 488; State ex rel. Evans v. Shea, 115 Pac. (Okla.) 862.]
As stated, the return to our provisional rule challenges the jurisdiction of this court. Of course, the circuit court has jurisdiction to punish for contempt. But relators contend that the alleged contempt is criminal; that no appeal would lie from a judgment of conviction; that the charges set forth in the citation do not constitute contempt; that since the matters set forth in the citation are matters of record, it is apparent that respondent judge by issuing the citation has prejudged relators guilty of contempt; and for these reasons relators have no adequate remedy by appeal or writ of error to review any adverse decision by respondent.
Under the general rule circuit courts are, in the first instance, vested with the power to decide questions of contempt subject to a right of review under a writ of habeas corpus. [Sec. 1459, R.S. 1929; State ex rel. v. Scarritt, 128 Mo. 331, 30 S.W. 1026; State ex rel. v. Cockrell, 280 Mo. 269, 217 S.W. 524.]
Even so, relators contend that the cited cases do not hold, and that this court has never held that prohibition would not lie in contempt proceedings. This statement is correct. We think prohibition would lie in a proper case. Indeed, in the cited cases the right to prohibition in contempt proceedings is recognized as existing in a proper case. However, we think that the instant contempt proceeding is not a proper case. The question of prejudgment is eliminated by the retirement of respondent. In this situation we think the circuit court should be permitted to proceed with the case.
The provisional rule should be discharged and the writ of prohibition denied. It is so ordered. All concur.