Opinion
No. 6942.
May 8, 1950.
Bradshaw Fields, John F. Low, Jean Paul Bradshaw, Lebanon, for relator.
John M. Bragg, Ava, M. J. Huffman, Hartville, for respondent.
This is an action in Prohibition. Relator petitions this court to prohibit Hon. Willis H. Mitchell, magistrate and Hon. Tom. R. Moore, Judge of the Circuit court of Douglas County from proceeding further with a temporary injunction issued in a divorce case. We issued our preliminary rule to show cause why a final judgment in prohibition should not be entered.
The facts are as follows: Linnie George sued her husband, Walter E. George for a divorce. In the petition as a separate paragraph, but not as a separate count, is the following: "2. Plaintiff further states that the defendant has possession of certain personal property within the State of Missouri consisting of a team of horses, two brood sows and three pigs, seven milk cows, three of which have calves by their sides, one shorthorned bull, one roan heifer, one steer, one spotted heifer, one jersey heifer, one jersey bull calf born in August, 1949, one yearling heifer calf, a portable saw, a Rite-Way Milking machine, a 1936 Ford coach automobile, 64 grown chickens, one wagon, turning plow and small plows, one set of harness, five milk goats, household and kitchen furniture located in the house on the farm where defendant is now residing, and one large lot of canned fruit. Plaintiff further states that all of the foregoing property has been acquired by and through the joint efforts of plaintiff and defendant during their married life together. Plaintiff further states that unless the defendant is restrained from selling or disposing of said personal property, said property will be sold or disposed of for the purpose of fraudulently depriving plaintiff of her rights therein as the wife of defendant."
The circuit judge being absent from the county, Magistrate Mitchell made the following order:
Order Allowing Temporary Writ of Injunction.
"Upon reading the petition of the plaintiff, it appearing that plaintiff, upon the facts stated in said petition, is entitled to the relief prayed for, it is hereby ordered by the Judge of the Magistrate Court of Douglas County, Missouri, that a temporary injunction be granted herein enjoining the defendant from selling or otherwise disposing of any of the following described personal property, to-wit: a team of horses, two brood sows and three pigs, seven milk cows, three of which have calves by their sides, one short-horned bull, one roan heifer, one steer, one spotted heifer, one jersey heifer, one jersey bull calf born in August, 1949, one yearling heifer calf, a portable saw, a Rite-Way milking machine, a 1936 Ford coach automobile, 64 grown chickens, one wagon, turning plow and small plows, one set of harness, five milk goats, household and kitchen furniture located in the house on the farm where defendant is now residing, and one large lot of canned fruit, until the further order of the Circuit Court of Douglas County, Missouri. This being a matter between husband and wife and being an ad interim order, no bond is required. It is further found by this Magistrate that the Circuit Judge is not within Douglas County and Circuit Court is not in session in said County.
"Dated this 27th day of February, 1950."
No bond was given as required by Sec. 1671, Mo.R.S.A. Relator seeks to prohibit further action on the injunction and asserts, among other things, that (a) the court exceeded its jurisdiction in issuing the temporary injunction without requiring such bond and (b) the court had no jurisdiction in a divorce case to restrain the husband from disposing of his personal property.
Respondents, in their return to our preliminary writ, admit the filing of the divorce petition with the above quoted paragraph, admit the magistrate made the order alleged but assert such action was lawful and within his jurisdiction.
There can be no question but that a magistrate may lawfully issue a temporary injunction, under proper circumstances, in the absence of the circuit judge from the county. Constitution of Mo. 1945, Art. V, Sec. 20, Mo.R.S.A.; Laws of Mo. 1945, P. 647, Mo.R.S.A. § 1661; Laws of Mo. 1945, P. 771, Sec. 11, Mo.R.S.A. § 2811.111.
First as to the bond. Section 1671, Mo.R.S.A. provides that no injunction, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the state in its own behalf, until the plaintiff or some responsible person for him shall execute a bond with proper sureties to secure the payment of such damages as defendant may suffer, should the injunction be dissolved. A very interesting and learned discussion of the history of this statute is contained in City of St. Louis v. St. Louis Gaslight Co., 82 Mo. 349, to which we refer the curious. The law is well settled in this state that a temporary injunction issued without the bond being given is void and that the court that issues it is acting in excess of its jurisdiction.
Ex parte Dillon, Mo.App., 96 S.W.2d 1095; State ex rel. American Bankers' Assur. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924; State ex rel. Jiner v. Foard, 251 Mo. 51, 157 S.W. 619; State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665; C. H. Albers Comm. Co. v. Spencer, 236 Mo. 608, 139 S.W. 321, Ann.Cas. 1912 D, 705; State ex rel. Missouri Pac. Ry. Co. v. Williams, 221 Mo. 227, 120 S.W. 740; State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876; State ex rel. St. Ferdinand etc. v. McElhinney, 330 Mo. 1063, 52 S.W.2d 400, 83 A.L.R. 202; Losee v. Crawford, 222 Mo.App. 683, 5 S.W.2d 105; Aetna Insurance Co. of Hartford, Conn. v. Security Printing Co., Mo.App., 196 S.W. 93.
It will be noted that in the order the magistrate said: "This being a matter between husband and wife and being an ad interim order no bond is required."
The idea of an "ad interim" order must have been derived from State ex rel. American Bankers' Assurance Co. v. McQuillin, Judge, 260 Mo. 164, 168 S.W. 924, where the court (we think obiter dictum) discussed a hypothetical set of facts where a valid ad interim order might have been issued. But the court there held that a temporary injunction had in fact been issued without bond and was therefore in excess of the chancellor's jurisdiction and void.
In State ex rel. Jiner v. Foard, 251 Mo. 51, 157 S.W. 619, 621, Judge Graves, in discussing a like situation, said: "The statute (now Sec. 1671) is not to be evaded or frittered away by calling that which is an injunction by any other name."
In this case, Judge Graves speaking for the Supreme Court also said: "If an injunction bond was a condition precedent to the granting of the restraining order made by Judge Foard in the case pending nisi, then the entering of that order was beyond the lawful jurisdiction of that court, and the writ of prohibition lies. In State ex rel. v. Williams, 221 Mo. loc. cit. 266, 120 S.W. 751, upon this exact question, this court said: `In view of the reason of the statute exacting a bond as a condition precedent to the granting of an injunction, we are of the opinion that the requirement of it goes to the very jurisdiction of the court, and that an injunction under the statute, without requiring the bond and its execution and approval before the issuing of the injunction, is and would be in excess of the jurisdiction of the circuit court; that, notwithstanding its general equity powers, the statute must control and be held to modify and regulate its jurisdiction, and when the consequences to a defendant are considered the statute is a wise and salutary one, and should be enforced. On this point our opinion is that the respondent, in issuing his restraining order and refusing to discontinue, set aside, or annul it, exceeded his jurisdiction, and should be prohibited from further maintaining said temporary injunction and ordered to set aside the same.'"
Presiding Judge Reynolds, speaking for the St. Louis Court of Appeals in Akin v. Rice, 137 Mo.App. 147, 117 S.W. 655, loc. cit. 659, under a similar situation said: "The second proposition turns entirely upon an effort to draw a distinction between a `temporary restraining order' and a `temporary injunction.' This is a contention over names more than over substance. * * * The authority of the courts of this state to issue injunction is coupled with the obligation to exact a bond. The statute is not to be evaded or frittered away by calling that which is an injunction by any other name. The restraining order in this case was of force against all of the defendants until it was dissolved and a further injunction refused on hearing of the motion to make it of force until final hearing. Who can doubt that a disregard of it would have subjected those against whom it was leveled, and who were bound by it, to punishment for contempt, exactly as absolutely as if it had been termed a `temporary injunction'? It would have been treated exactly as any other injunction. We decline to follow the refinements of the very able, industrious, and learned counsel for the appellant in their attempt to draw a distinction between such a temporary restraining order and an injunction."
In Aetna Insurance Co. of Hartford Conn. v. Security Printing Co., Mo.App., 196 S.W. 93, 95, the Chancellor issued what he called a "stay order". But it was held it was in fact a temporary injunction. "What it is called, is immaterial."
Our view is that merely because the magistrate called the temporary injunction in one place, an "ad interim order" to explain why a bond was not necessary or required, in no way changed the order he had made and that it was still a temporary injunction. He exceeded his jurisdiction in issuing it without requiring a bond and the circuit court in proceeding further in regard to it would do likewise. For that reason, alone, our preliminary rule should be made absolute.
We might well rest with this ruling but we deem it our duty to go further and decide the second question raised, otherwise the trial court could require the plaintiff in the divorce suit to give a bond, Wegenka v. City of St. Joseph, Mo.App., 212 S.W. 71, and the case would come back here for the determination of the second question. If possible, we should dispose of it finally on this appeal. Sec. 140, Code of Civil Procedure, Mo.R.S.A. § 847.140.
At common law, the personal property of the wife, reduced to possession, belonged to the husband. He could dispose of it at will. 26 Am.Jur. Husband and Wife, Sec. 40, 41 C.J.S., Husband and Wife, p. 425, § 23; Hart v. Leete, 104 Mo. 315, 15 S.W. 976; Botts v. Gooch, 97 Mo. 88, 11 S.W. 42, 10 Am.St.Rep. 286.
The reason for this rule was that he was the head of the household and upon him was the duty of supporting the wife in the manner consistent with his situation and condition in life, regardless of her financial condition. 41 C.J.S., Husband and Wife, p. 404 § 15; Seman v. I. Ilgenfritz, 223 Mo.App. 546, 15 S.W.2d 912; State ex rel. McCrory v. Bland, 355 Mo. 706, 197 S.W.2d 669, 168 A.L.R. 929. At common law, or under the statutes of this state, no such duty was or is placed upon the wife in regard to the husband. 30 C.J. p. 845, § 514; 30 C.J. p. 520, § 35; 41 C.J.S., Husband and Wife, p. 413, § 16; 41 C.J.S., Husband and Wife, p. 766, § 281. If he fails to supply his wife and children with necessaries, they may be supplied by others and the husband required to pay the bill.
The Married Woman's Act of 1889, Mo. R.S.A. § 3376 et seq., did not relieve him of this responsibility. 41 C.J.S., Husband Wife, p. 408 § 15(b).
Section 1682, Mo.R.S.A. gives a wife the right to enjoin the husband, when through habitual intemperance or any other cause he is about to squander or waste the property "to which she is entitled in her own right," or which he is proceeding fraudulently to convert to his own use for the purpose of placing the same beyond her reach, or deprive her of the benefit thereof. But this statute applies only to property "to which she is entitled in her own right."
In State ex rel. Bonnel v. Bridgeman, Judge, 232 Mo.App. 1246, 117 S.W.2d 404, a wife had brought a suit against her husband for separate maintenance and had later applied for the appointment of a receiver on the theory that he was about to squander property of which she was "co-owner". The court held that no cause of action was stated because it was not alleged that she was entitled to the property in her own right. In her separate maintenance petition she alleged that it was property acquired through their "joint efforts". In the application for receiver she alleged she was "co-owner" and the Court of Appeals held that before the trial court had jurisdiction to appoint a receiver, the wife must bring herself strictly within the wording of the statute, that she had failed to do so and that a writ of Prohibition would be issued to prevent the trial court from proceeding further with the matter. No other statute has been called to our attention, and our independent search has revealed none, that permits an injunction such as was sought below.
It has been held that a judgment for alimony is a money judgment of the same force and effect as other judgments. Sec. 1520, Mo.R.S.A.; Harrington v. Harrington, 233 Mo.App. 390, 121 S.W.2d 291; Crane v. Reinking, Mo.App., 215 S.W.2d 759; Hagemann v. Pinska, 225 Mo.App. 521, 37 S.W.2d 463; Hansen v. Hansen, Mo.App., 203 S.W.2d 6; Pflanz v. Pflanz, 237 Mo.App. 873, 177 S.W.2d 631. And it has also been held that in a divorce case, the trial court cannot decree to the wife property of the defendant spouse as alimony. Ecton v. Tomlinson, 278 Mo. 282, 212 S.W. 865; Watts v. Watts, 304 Mo. 361, 263 S.W. 421; Tureck v. Tureck, Mo.App., 207 S.W.2d 780; Aylor v. Aylor, Mo.Sup., 186 S.W. 1068; Fisher v. Fisher, Mo.App., 207 S.W. 261; Landau v. Landau, Mo.App., 71 S.W.2d 49; Bishop v. Bishop, Mo.App., 151 S.W.2d 553, or make an alimony judgment a special lien upon particular property. When the trial court has rendered a decree of divorce for the wife and fixed the amount of her alimony, that judgment like other judgments can be satisfied by execution. Sec. 1519, Mo.R.S.A.
Bearing in mind these principles of law, let us follow the course set in motion by the magistrate. When the trial court hears the divorce petition, it may or may not grant plaintiff a divorce or alimony, but, if it does grant her a divorce and render a judgment for alimony, that judgment of course, under certain conditions, becomes a lien upon the real estate. Sec. 1520, Mo.R.S.A.
To recover upon the personal property, an execution must be issued, placed in the hands of the sheriff and the personal property seized as provided by statute.
Now if a divorce had been granted and alimony allowed, what could the trial court do relating to the temporary injunction? Could it sequester his property by making it permanent and thereby prevent the defendant in the divorce case from disposing of his property upon the supposition it would be necessary to issue an injunction? In Watts v. Watts, 304 Mo. 361, 263 S.W. 421, 422, the Supreme Court said: "The trial court, also, had no authority permanently to enjoin the defendant (husband) from transferring his property." Or would the chancellor be compelled under the situation in which it found itself to dissolve the temporary injunction? It has no authority to turn certain property or any property it may have sequestered by a temporary injunction, over to the wife in satisfaction of a judgment for alimony.
Plaintiff, in the divorce suit, attempts to complain that unless the defendant is restrained from selling or disposing of said personal property, it will be sold or disposed of for the purpose of depriving plaintiff of her rights therein as the wife of defendant. What are those rights? She has the right to be supported, as heretofore referred to, but the rights in the personal property of her husband are such as materialize only upon his demise. Sec. 323, Mo.R.S.A., Wanstrath v. Kappel, 356 Mo. 210, 201 S.W.2d 327.
We are not holding that the paragraph in the divorce petition contains all the necessary elements of a proper petition for injunction. It does not. Nor are we holding that a petition for injunction can be intermingled with a petition for divorce rather than be set out in a separate count, if attacked. It cannot. We are holding that the court had no jurisdiction in this stage of the proceedings for divorce to enjoin the husband from disposing of his property such as is described in plaintiff's divorce petition. There is no allegation that it was the separate property of the wife or that the husband was about to squander it, but the most that can be said from the conclusions stated by the wife is that she had a suspicion that her husband might dispose of the property, that she believed she would get a divorce and a judgment for alimony and that if she did, that she would be unable to collect it in case her husband had disposed of the property described. An injunction is never granted to allay the fears and apprehensions of anyone but only for an actual or threatened wrong. St. Louis 221 Club v. Melbourne Hotel Corp., Mo.App., 227 S.W.2d 764. The chief purpose of a writ of prohibition is to confine a lower court within its proper jurisdiction and to prevent it from acting without or in excess of such. State ex rel. Taylor, Attorney General, v. Nangle, Judge, Mo.Sup., 227 S.W.2d 653.
In the case of State ex rel. Keller v. Porterfield, Circuit Judge, Mo.App., 283 S.W. 59, 60, the relator sought a Writ of Prohibition against Judge Porterfield. There had been filed in Judge Porterfield's court a petition for divorce by Addie E. Keller against Frank Keller. In her petition, after alleging indignities, she stated that she and her husband owned as an estate by the entirety certain property, which was rented to one Gus Saunders; that her husband was collecting the rent from said property. Keller was not personally served in the divorce suit. It was alleged in the petition for writ of prohibition that Addie E. Keller, as plaintiff in the divorce suit, was attempting to secure and did secure from Judge Porterfield "an order in the nature of a temporary injunction, whereby she attempts to enjoin relator from further collecting rent on said premises and enjoining said Saunders from paying rent to relator and directing the said Saunders to pay her all rents now due or to become due on said premises." It was then alleged in the petition for a writ of prohibition, that it was "beyond the jurisdiction of said court to make such an order and that said order so made is void and of no effect." On this contention the Kansas City Court of Appeals said: "In his brief in support of the petition for the writ, relator argues that, even if service were had on relator the court would have no jurisdiction to enter a decree sequestering or conveying any property or property rights, but could merely enter a judgment for temporary alimony in favor of the wife, who would have the usual method of execution to enforce it. That this position is correct was held by the Supreme Court in Watts v. Watts, 304 Mo. 361, 263 S.W. 421; also see cases therein cited."
And the Supreme Court also held in State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1, 3, that a writ of sequestration is no longer available to compel payment of money such as alimony. In this case, Douglas, J. speaking for the court said: "In the growth of our jurisprudence, it is true that certain of the old equitable remedies have been displaced. Sequestration is no longer vital. This process could not issue until the person failing to comply with the order of the court was put in contempt and imprisoned. As imprisonment for debt is abolished, this writ became no longer available merely to compel the payment of money such as an award of alimony. Roberts v. Stoner, 18 Mo. 481; Coughlin v. Ehlert, 39 Mo. 285." See also concurring opinion of Walker, J. in Watts v. Watts, 304 Mo. 361, 263 S.W. 421.
In Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448, 451, the court held that suits for divorce and alimony depend upon and are limited by the statutes and speaking of the sequestration of property in a divorce suit, it said: "Even if the statute in that respect is not void, the writ of sequestration cannot issue until after the judgment for alimony is rendered. Prior to such judgment the plaintiff is not entitled to any lien nor to `any lawful right, claim, or demand to or against' the property described in the petition, * * *. The court is not authorized by the statute to make any order or decree with reference to any specific property. It can only render judgment for money as alimony."
By the temporary injunction in this case, an attempt is being made to hold or sequester specific property to liquidate a judgment for alimony that may be rendered in the future.
Respondents cite the case of Gorka v. Gorka, 221 Mo.App. 1033, 295 S.W. 515, as being in point with and sustaining their contention. We do not so read that case. It was a suit for divorce and alimony and for an injunction preventing the defendant and others from disposing of certain certificates of deposit. Only the record proper was before the appellate court and we do not know what the evidence was. The opinion shows that a temporary injunction was issued restraining John Gorka from receiving or taking into his custody any funds belonging to him on deposit in the name "Alice Hayes" and from using any funds deposited in her name by him. Upon the trial of the case, the temporary injunction was made permanent so long as the judgment and costs and $400 alimony due plaintiff and $100 attorney fees remained unpaid. The pleadings are not set out and we do not know their allegations. The court held that the rights of an individual and corporation, not before the court as parties, could not be adjudged on appeal from a decree granting an injunction against them, they being in no position to complain. The court reversed that part of the decree which sought to restrain those not parties to the suit.
The case of State ex rel. McElvain v. Riley, Mo.App., 276 S.W. 881, was discussed and distinguished. This opinion as published in the official reports, does not contain the briefs of counsel. Without the briefs, pleadings or evidence, we are unable to say that it supports the contentions of respondent.
The respondents rely upon the case of State ex rel. McElvain v. Riley, Circuit Judge, Mo.App., 276 S.W. 881, 883. That was a case in which Lee McElvain, the wife, had filed a divorce suit against her husband Clyde T. McElvain. After obtaining a decree of divorce, she filed a motion praying the court to require her husband to pay her the amount of money she had expended in caring for and maintaining the minor children since the decree of divorce was granted and asked that the Citizens Trust Company, a banking corporation, be ordered to make no further payments to her husband from a fund left with the bank by her husband's father in trust for him, until the further order of the court. This order was made and served upon the Citizens Trust Company, which moved in the trial court for a revocation of the restraining order. This was overruled and an application for a writ of prohibition filed in the Springfield Court of Appeals. Two points were urged, first, that the trial court could not issue such an injunction without first requiring a bond as required by statute and secondly, that the trust company was not a party to the suit and that as to it, such order was void. In its original opinion, this court discussed the first objection but refused to pass upon it inasmuch as it must decide in favor of relator on the second objection and the preliminary rule was made permanent because the bank was not a party to the action and it was not bound by the order.
However, on a motion for rehearing the court decided to pass upon the first objection and stated that where the rights of children were involved, the courts have ever been actuated by the guiding star of the children's welfare. The court then stated that it did not consider the order made by Judge Riley was one that came within the statute requiring the giving of an injunction bond. The court said: "It is simply an order to keep relator's property in the custody of the court until the rights of the children may be determined. We believe a court of equity has such power in cases of this character. Such an order should be made only in extreme cases, resting within the sound discretion of the chancellor. We adhere to the proposition, however, that the court exceeded its jurisdiction as indicated in the original opinion."
The original opinion was then modified by directing the trial court to fix a time and place within ten days for a hearing on said order and that it order the Citizens Trust Company to appear at said time and place and show cause, if any, why such order should not be made permanent.
This case has been frequently cited as authority for the proposition that such an order as here in question can be legally issued without giving bond.
None of these citations have followed this case through. The divorce case between Lee and Clyde McElvain came to this Court, McElvain v. McElvain, 221 Mo.App. 135, 296 S.W. 460, 463. The same judge who wrote State ex rel. McElvain v. Riley, supra, wrote the opinion in McElvain v. McElvain and there he said: "Our courts have refrained from passing squarely on the power of our circuit court to issue an injunction or any other order which would keep matters in status quo until the rights of the parties could be determined in a divorce suit. The very fact, however, that it has never been done lends some force to the argument that the divorce court has no such power. It is apparent that our courts are handicapped in many particulars when it comes to enforcing its decrees or protecting the rights of children in cases of this character. While a father may be guilty of a criminal offense in abandoning his wife or children, at the same time he may escape with his property; the wife and children are compelled, it seems, to take their chances along with other judgment creditors in enforcing their legal demands by execution, which procedure too often fails to accomplish its purpose. Whether or not we were in error in our previous opinion, holding the court could issue an order restraining the trust company, as trustee, from paying out funds belonging to defendant until the further orders of the court, need not now be considered. It is clear to us that the trial court exceeded its jurisdiction in attempting, by its decree in this case, to sequester the specific funds of defendant Clyde McElvain in the hands of the trustee. A review of some of the authorities will demonstrate that such is the law."
The court then reviewed the cases of Robinson v. Robinson, 268 Mo. 703, 186 S.W. 1032, Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448; State ex rel. Keller v. Porterfield, Mo.App., 283 S.W. 59; Watts v. Watts, 304 Mo. 361, 263 S.W. 421; Aylor v. Aylor, Mo.Sup., 186 S.W. 1068, and then held that the trial court was without jurisdiction in attempting to decree that the Citizens Trust Company pay Lee McElvain's alimony judgment from specific funds held by it for her husband, Clyde.
Taking these two cases together, we do not believe they are authority for the proposition that a trial court, upon the application of a wife, can by a temporary injunction sequester the personal property of the husband, but on the contrary, hold that it cannot. We hold that the magistrate and the circuit court are exceeding their jurisdiction in attempting so to do and our preliminary rule is made absolute.
BLAIR and McDOWELL, JJ., concur.