author: GANTT, C. J.

text:
    HENRY J. KOERNER, Appellant, v. ST. LOUIS CAR COMPANY.
    In Banc,
    January 27, 1908.
    1. DEMURRER: Admits Facts. A demurrer to the evidence admits every fact -which the jury may infer from the evidence before them, and should be sustained only when the evidence thus considered fails to make proof of some essential averment.
    2. FELLOW-SERVANT: Exact Expression of Rule. It is impracticable to so define what constitutes the relation of fellow-servants between two of defendant’s employees that all cases may be weighed and gauged by it. Unsatisfactory though it be, the rule must remain general, and its application specific as cases arise".
    3. -: Exception to Rule. The exception to the general rule that the master is not liable for injuries to a servant inflicted by a fellow-servant, is perhaps as well stated in Parker v. Railroad, 109 Mo. 1. c. 40S, as anywhere else, wherein it is stated that the rule should be applied only in those cases where the servant injured and those inflicting the injuries are so associated and related in their work that they can observe and have an influence over each other’s conduct, and can report delinquencies to a common correcting power or head; in short, they should be fellow-servants in fact, and not simply in dialectic ' theory.
    4. -: -: Car Painter: Switchman. A painter employed in car sheds, where from 1,000 to 2,500 persons were employed, all under the direction of a general superintendent, the painter under the direction of -a foreman, was not a fellow-servant of a switchman, whose duty it was to assist the motorman, both under the immediate direction of the superintendent, to hitch a dummy engine to cars in the sheds and move them to the tracks'for use.
    5. -: -: — : Limited to Railroads. The same reason which applies an exception to the general fellow-servant rule to railroads, is applicable to large manufacturing plants and other businesses. Where a master is operating a great enterprise which calls for various departments in the execution of his work, whether it he a railroad or an immense plant for the manufacture and construction of cars, requiring various and distinct branches of labor, whether under different foremen or not, he is within the exception to the rule.
    6. -: Stare decisis. The doctrine of stare decisis applies to a decision on points arising and decided in the case, on the final result reached, and not to the reasoning by which the result was reached or to discussions of doctrines contained in the opinion or to criticisms of other cases. [Citing Grattis v. Railroad, 153 Mo. 380, and approving of the result reached, but not approving the criticism of the departmental doctrine as applied to fellow-servants.]
    7. NEGLIGENCE: Master and Servant: Reasonably Safe Place. When the defendant carworks company, through its foreman in charge of the painters, sent plaintiff to work at painting a car, standing as was customary upon its tracks inside the car sheds, it was its duty to provide against other cars running down against the car he was painting and to see to it that other cars which were pulled out of the sheds were not attached to the car upon which he was working without giving him warn- • ing of its intention to move said car. The servant does not assume the' risk arising from the master’s neglect to use suitable precaution for his safety.
    8. -: -: -: At Time Work Began. It is not sufficient that the place was. reasonably safe when the servant was sent to work. The master’s duty is a continuing one. If the car which the servant was painting was rendered unsafe by the sending by the master of á switching crew who attached a dummy engine to it without giving him warning that they intended to move it, the master is liable for the consequences of that negligent act.
    9. -: -- — : -: Vice-Principal: Switchman. Whenever the master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middle man whom he has selected.as his agent. So that the defendant car company, in directing a switchman to move a car on the same track and next to the one which plaintiff at the time in the line of his employment was painting, and that car was moved, without any warning to or knowledge by plaintiff that it was attached to the one on which he was working, the switchman was the company’s vice-principal, and the company is liable for his negligence.

      10. -: Contributory: Matter of Law. Under the circumstances of this case the court had no right to declare as a matter of law that plaintiff’s contributory negligence would bar his recovery, but that was a question that should have been submitted to the jury under proper instructions.
    Appeal from St. Louis City Circuit Court. — Now. Robert M. Foster, Judge.
    Eeversed and remanded.

      Wm. L. Bolmenkamp and Wm. R. Gentry for appellant.
    It was stated by tbe court when the demurrer to the evidence was argued that tbe court believed tbe switchman and plaintiff to be fellow-servants and for that reason the demurrer to the evidence was sustained. This fact does not appear in the instruction of the court. (1) Plaintiff was entitled to have his case submitted to the jury on the theory that the act of the switchman in giving the signal to start the dummy without having taken all of the usual precautions and without giving* the warning which his duty required him to give, was not the act of a fellow-servant, but was the act of a servant in a different department from the department in which plaintiff was employed and for whose act the master was liable; that as they were working in distinct departments plaintiff and Hensler were not fellow-servants. Lanning v. Eailroad, 196 Mo. 647; Dixon v. Eailroad, 109 Mo. 413; Parker v. Eailroad, 109 Mo. 362; Sullivan v. Eailroad, 97 Mo. 113; Condon v. Eailroad, 78 Mo. 567; Tabler v. Eailroad, 93 Mo. 79; Smith v. Eailroad, 92 Mo. 359; Miller v. Eailroad, 109 Mo. 350; Swadley v. Eailroad, 118 Mo. 268; Jones v. Eailroad, 125 Mo. 366; Keoun v. Eailroad, 141 Mo. 86; Schlereth v.' Eailroad, 115 Mo. 87. (2) Aside from the department rule, the switchman, in causing the dummy to be moved in' such a way and in causing the car upon which plaintiff was working to knock down the scaffold, violated the duty owed -by the master requiring the master to furnish the servant a reasonably safe place to work, which duty the master could not rid himself of by imposing it upon any servant, whether of high or low position. Dayharsh v. Railroad, 103 Mo. 570; Moore v. Railroad, 85 Mo. 588; Railroad v.'Skola, 183 111. 454; Railroad v. Pox, 31 Kan. 587; Railroad v. Triplet, 54 Ark. 289; Railroad v. Holcomb, 9 Ind. App. 198; Railroad v. Heiniel, 82 Tex. 623. (3) The evidence concerning the question of plaintiff’s exercising ordinary care for his own safety was of such character that plaintiff was clearly entitled to go to the jury on that point. And there was no evidence tending to show that as a matter of law plaintiff was guilty of negligence which directly contributed to cause his injury. Phippin v. Railroad, 196 Mo. 321.

      Seddon é Holland for respondent.
    The court did not err in giving the peremptory instruction asked by respondent (defendant) at the close of all the evidence. (1) Because if there was any negligence on the part of the switchman and motorman on the occasion in question, in starting the car without giving a warning, it was the negligence of fellow-servants of appellant. Card v. Eddy, 129 MO'. 510; Rohback v. Railroad, 43 Mo. 187; Murray v. Railroad, 98 Mo. 573; Higgins v. Railroad, 104 Mo. 413; Relyea v. Railroad, 112 Mo. 86; G-rattis v. Railroad, 153 Mo. 380; Purcell v. Tennent Shoe Co., 187 Mo. 276; McCarty v. Rood Hotel Co., 144 Mo. 397; Jackson v. Lincoln Commission Co., 106 Mo. App'. 441; Ryan v. McCarty, 123 Mo. 636; Steffen v. Mayer, 96 Mo. 420; Shaw v. Bambrick-Bates Construction Co., 102 Mo. App. 666; Stocks v. Railroad, 106 Mo. App. 129;.Sherrin v. Railroad, 103' Mo. 378; Hughes v. Fagin, 46 Mo. App. 37; Sheehan v. Prosser, 55 Mo. App. 569; Dayharsh v. Rail road, 103 Mo. 570; Forbes v. Dunnavant, 95 S. W. 934; Bowen v. Railroad, 95 Mo. 277; Herbert v. Wiggins Ferry Co., 107 Mo. App. 287; Armour v. Habn, 111 U. S. 313. (2) Because tbe injuries complained of by plaintiff were directly contributed to by his own negligence. Culbertson v. Railroad, 140 Mo. 61; Turner v. Railroad, 74 Mo. 602; Weller v. Railroad, 120 Mo. 635; Clark v. Railroad, 127 Mo. 197; Steffen v. Mayer, 96 Mo. 420; Purcell v. Tennent Shoe C'o., 187 Mo. 276.
   GANTT, C. J.

Tbis is an action for damages for personal injuries commenced in the circuit court of tbe city of St. Louis. At tbe close of tbe plaintiff’s case, tbe circuit court gave a peremptory instruction to find for tbe defendant and a verdict was accordingly returned. After an unsuccessful motion for a new trial, tbe cause was appealed to tbis court.

The petition alleges tbe incorporation of tbe defendant, and charges that it was engaged in tbe business of manufacturing street cars, and in carrying on its business it maintained large sheds, yards and railroad tracks, both in tbe yards and in tbe sheds, wherein cars were kept standing until they were ready to be taken out and delivered to purchasers; that for tbe purpose of moving the cars from place to place in tbe yards and sheds, tbe defendant bad a crew known- as a switching crew, composed of a motorman and switch-man; that tbe motorman ran what was known as a dummy, which was in fact an electric car, and that it was tbe duty of the switchman to give proper signals to the motorman, and it was the duty of tbe mo-rtorman to start and stop tbe dummy on receipt of these .signals; that in addition to having tbe duty of signaling to tbe motorman, tbe switchman was intrusted with tbe duty of coupling tbis dummy engine to new ears when they were ready to be taken out of tbe shed's, and to see that other cars standing upon the same track with the one which was to be moved were not coupled thereto before giving the signal to' the motorman to start the dummy, after it was coupled to the car which the switching crew undertook to move. It is further alleged that it was a p-art of the duty of the switchman to see that the cars standing upon the same track as the ones to which the dummy was coupled, which cars were to be left on the said track, had their wheels properly blocked to prevent them from moving when the car to which the dummy was attached, was pulled away. It is also alleged in the petition that the motorman and switchman were under the direct supervision and orders of the general superintendent of the defendant. The petition then proceeds to state that at the time of the accident and for a long time prior thereto1, the plaintiff was a painter by trade, and was employed by the defendant to paint cars in this said plant, and to do other work necessary in and about the finishing of the cars; that plaintiff was engaged in a different department of service from the switchman and motorman and was a member of what was known as the paint gang, under the direction of the paint foreman, who had no authority whatever over the motorman and switchman; that on the 12th day of March, 1903, plaintiff had climbed upon a scaffold or trestle erected by the side of a new car, which was standing on one of the tracks in the defendant’s sheds, and was at the time engaged in removing surplus putty from the edges of the windows on the outside of said new ear; that while so engaged working upon the said car, there was another new car on the same track directly in front of the one upon which the plaintiff was working and was so close to it that the ends of the two ears touched each other, and they were fastened together in some manner, which was and is still unknown to the plaintiff, but plaintiff did not know at the time that they were so fastened to-getter; that while plaintiff was so engaged at his work, the switching crew came in with the dummy and coupled to the car standing on the same track immediately in front of the car upon which plaintiff was working; that the switchman, after having coupled the dummy to the car in front of the one on which plaintiff was working, negligently gave to the motorman the signal to start said car in motion, without, having unfastened said car from the one upon which plaintiff was working and without having used ordinary care to see that it was not attached to the car upon which plaintiff was working. It was further alleged that the switchman on said occasion negligently failed to block the wheels of the car upon which plaintiff was working so as to prevent it from moving, and negligently failed to warn plaintiff of his intention to move the said car, which he was about to move, as was his duty to do-. It is also alleged that the defendant negligently failed to provide plaintiff with a reasonably safe place in which to work, and negligently failed to provide for his safety, in that the defendant, through its said switchman, carelessly and negligently gave the signal to the motorman to start the dummy in motion and negligently caused the car upon which plaintiff was working to be moved while plaintiff was working upon the same, and negligently failed to warn the plaintiff of his intention to move the said car and negligently failed to block the wheels of the car upon which plaintiff was working, and that the motorman started the dummy in response to the signal from said switchman, putting in motion the car to which the dummy was coupled, and that the said car when it moved forward pulled with it the car upon which plaintiff was working so that the step of the car, upon which plaintiff was working, was caused to strike the support of the scaffold upon which plaintiff was working, and knocked the same down, throwing the plaintiff off, and injuring him severely. The petition then closed with a description of the plaintiff’s injuries and the damages he had sustained and a prayer for judgment in the sum of fifteen thousand dollars together with the costs of the case.

The answer was, first, a general denial; second, a plea of contributory negligence on the part of the plaintiff ; and, third, that any injuries sustained by the plaintiff were caused by the act of a fellow-servant of the plaintiff, and plaintiff assumed the risk of any negligence on the part of such employee or employees. The reply was a general denial of the new matter set up in the answer.

The evidence on the part of the plaintiff tended to prove that for some time before Ms injury, he had been employed as a car painter by the defendant in its car works, under a man by the name of Mehlin, who was the general paint foreman, having authority to hire and discharge men working as painters, about one hundred and fifty of whom°worked at the plant; that on the day he received the injuries of wMch he cQmplains, the plaintiff was directed by his superior in the paint department to work on the new car standing in one of the sheds; that in order to reach the windows from the edge of which he was ordered to remove the surplus putty, it became necessary for Mm to erect a little scaffold ; that he placed the trestles supporting the scaffold as best he could, not having a very good opportumty to place them on account of a pile of old scrap iron which was in the way; that as it was placed the trestle supporting the scaffold was near the side of the car, and as it afterwards turned out, it was too near to allow the step of the car to-clear it if the oar was moved, but plaintiff was not expecting the car to be moved, as it was not finished. That he had been at' work about three-quarters of an hour, and wMle working on tMs car, it was suddenly pulled away and he was knocked down and fell on a pile of iron and received a broken arm and Ms side was badly bruised1 and he suffered a fracture of the skull. The plaintiff himself testified further that there were five cars out on the tracks that were to be shipped that day, two on the north or inclined track, and three on the track south of the inclined track. The car on wMch plaintiff was worMng was standing east-and-west, and the car coupled on to it in front of tMs car stood in a sort of northeast position. There was a dummy car used as an electric locomotive in charge of a motorman named Fokerst and a switchman named Hensler; that this switching crew was not under the direction of the paint foreman, plaintiff’s boss, and he had notMng to do with them. The plant was a very large one and employed a large number of men in its various departments. One of the witnesses estimated the number of men employed at 2,500, others said from 1,000; to 1,500 at a time. The testimony also tended to show that when the general superintendent wanted any cars taken out of the sheds, he sent this switching crew to any part of the yards where the cars might be, and that it had been the universal custom, before any car was moved in the sheds, for the switchmen to walk around the car, see that any car standing immediately behind it was blocked so that it could not move forward, and see that it was clear so that the car to wMch the coupling was made would not pull it along as it started out, and if any workman was engaged in worldng upon the car to notify and warn him of his intention to move the car. The evidence further tended to show that the workmen engaged in working upon these cars relied upon this custom and paid no attention to the movements of the dummy, unless directed by the switchman to look out. The evidence further tended to show that the car upon which plaintiff was working was so situated that a car immediately in front of it standing upon a crave, concealed the plaintiff from the switchman as he approached with the dummy; that the switchman coupled the dummy immediately in front of the one upon which plaintiff was working and neglected to give any warning or to ascertain whether or not any of the men were so situated that they might be injured by moving the car, and neglected to see whether the car to which the dummy was coupled was fastened in any manner to the car upon which plaintiff was working, and neglected to see that the wheels of the car upon which plaintiff was working were blocked, which last precaution was necessary in this ease, from the fact that there was a slight down grade from the place where the car upon which plaintiff was working stood toward the dummy. When the dummy started in some manner it pulled with it the car upon which plaintiff was working and the st,ep of the car upon which plaintiff was'Working struck the support of the plaintiff’s scaffold and plaintiff was thrown off and severely injured. It is true that the witness Hensler, defendant’s switchman, who was called by the plaintiff as a witness, testified that the car upon which plaintiff was working lacked a little bit of touching the car to which he coupled, but a number of other witnesses testified1 positively that the two cars were touching each other. The importance of the switchman taking all the precautions alleged to have been necessary, and which the evidence tended to show he failed to take, was shown by the fact that the men frequently worked under the cars attaching pipes and apparatus for the air brakes, worked on scaffolds adjoining the car on the outside, and also worked inside of the cars., The plaintiff testified that at the time of his injuries he was working on the south side of the car and the dummy came from a northeast direction; that no warning whatever was given him that the car was about to be moved. On cross-examination, he stated that he placed his carpenters’ horse, upon which his scaffold was resting, in position himself; that he did not notice the steps at the end of the car and so arrange the horse that if the car started it would not hit the horse, because they had always warned him to look out, and he had no thought that the car was. to be pulled out.

I. The rule is firmly established in this State that a demurrer to the evidence admits every fact which the jurors may infer if the evidence were before them and should be sustained only when the evidence thus considered fails to make proof of some essential averment. [Rine v. Railroad, 100 Mo. 228; Myers v. Kansas City, 108 Mo. 480; Franke v. St. Louis, 110 Mo. 516; Moore v. Railroad, 194 Mo. 1, l. c. 9; Bender v. Railroad, 137 Mo. 240.]

"Were the plaintiff and the switchman, whose alleged negligence in pulling out the car to which the unfinished ear on which plaintiff was working was attached, without warning tp the plaintiff, thereby causing plaintiff’s injuries, fellow-servants so as to. exempt the defendant from said negligent act? We all agree that the rule which exempts the master from liability to one servant from the negligent act of a fellow-servant prevails in this State, but we think it must be conceded that the broad and sweeping rule announced in Farwell v. Railroad, 4 Metc. (Mass.) 49, has not met the approval of this court in many cases. As said by Judge Black in Parker v. Railroad, 109 Mo. l. c. 407, that rule “had but little more than been approved when courts and legislatures began a process, of cutting it down because of the gross injustice which it worked out in its application to the great enterprises of the day.” On the other hand, what is known as. the department rule has not been adopted in this State in all of the broadness for which many of its advocates, have contended. .Much of the difficulty has ¿risen from the inability of the courts to determine at all times whether, the employment was a common service and the employees fellow-servants-within the meaning of the rule itself. We are aware that it is insisted that the courts ought to be able to so express the rule that all cases can be weighed and gauged by it. But we are of the opinion, after long consideration, that unsatisfactory as it might seem, the rule itself must remain general and its application specific as the eases arise. The subject was given great consideration in Parker v. Railroad, 109 Mo. 362. In that case, contrary to the views of the present writer, this court refused to- hold that a railroad locomotive engineer and a track-walker in the service of the same company were fellow-servants within the rule exempting masters from liability for injuries received through the negligence of a fellow-servant. Afterwards when the same question arose in Schlereth v. Railroad, 115 Mo. 87, this court In Banc, through Burgess, J., approved the opinion of. Judge Maceablane in Division, in which he said: “The importance of having the rules of law firmly established, especially those under which property rights are held, or the business and wages of large classes of citizens are made to depend, is fully recognized, and we therefore hold in accordance with the late rulings of this court that the husband of plaintiff [the track-walker] was not a fellow-servant of the negligent engineer within the rule of exemption. [Sullivan v. Railroad, 97 Mo. 113.] In the last-cited case it was ruled that a track-walker on a railroad is not a fellow-servant of the locomotive engineer or fireman of a passenger train. In Condon v. Railroad, 78 Mo. 567, it was ruled that a car repairer at a station and a trainman were not fellow-servants within the meaning of the rule. And in Hall v. Railroad, 74 Mo. 298, it was held that a section foreman and a switchman were not fellow-servants. In Dixon v. Railroad, 109 Mo. 413, a quarry laborer under orders of a foreman, who had control of the quarry and represented the company, was not a fellow-servant with the trainmen on a passenger train. All of these cases were cited with approval and followed by this court In Banc, in Lanning v. Railroad', 196 Mo. 647. In this last-mentioned ease it appeared that the plaintiff was a workman engaged as a part of a crew emptying cars of coal into bins at a coal-chute and was injured by the negligence of an engineer in backing some cars up an incline and causing them to strike the car on which plaintiff was working. The crew in which plaintiff worked had its own foreman from whom he took his directions and the engineer worked under the general supervision of the yard-master, and it was held that the plaintiff and the engineer were not fellow-servants, this court saying: “We think that the workmen so distantly related to each other in the service of a common master as plaintiff and Gahagan were, were not fellow-servants within the meaning’ of the rule which exempts a master from liability for injuries inflicted by a fellow-servant upon a fellow-servant. ... in our opinion the reason of the rule forbids its application to the facts in this ease.”

When we look for the underlying principle upon which all of these cases rest as exceptions to the general rule announced in Farwell’s case, it will perhaps be found as well stated in the separate opinion of Judge Black in Parker v. Railroad, 109 Mo. l. c. 409, as anywhere. As that rule prevailed in that case, it will bear repeating here: “Now, it being conceded, as it must be, that the master is liable to third persons for the negligent acts of his servants, it is difficult to see how public policy has much to do with the question as to who shall be deemed fellow-servants within the rule of exemption. The liability being admitted in ease a third person is injured, but denied in case a servant is injured by another servant, the denial in the latter case must stand on some peculiar relation between master and servant. This peculiar relation cannot be simply the fact that the servants are in a position where one may be injured by the negligence of another, for third persons often occupy the same position; as where they become passengers. The real and only, point of distinction, it seems to us, arises- out of the fact that servants are so associated and related in the performance of their work that they can observe and influence each other’s conduct, and report any delinquency to a correcting power. To say a clerk engaged in an office, making out pay rolls for a railroad company, is a fellow-servant, within the rule of exemption, with those engaged in operating trains, is out of all reason. Guided by the real reason for the rule, it seems to us it should be applied and applied only in those cases where the servant injured and the one inflicting the injuries are so associated and related in their work that they can observe and have an influence over each other’s conduct, and can report delinquencies to a common correcting power or head. In short, they should be fellow-servants in fact, and not simply in dialectic theory, if in separate and distinct departments, so that the circumstances just stated do not and cannot exist, then they are not fellow-servants within any just or fair meaning of the rule. This conclusion, though not in strict accord with the majority of the adjudged cases, is, it is believed, within the true and only reason for the rule, and has the support of many cases, some of which go much further than has been indicated.” Now in the case at bar, we have seen that the plaintiff belonged to a gang of painters who were working under a general paint foreman, Mbhlin, who had authority to hire and discharge them and to direct their work. This foreman had no power or authority over the switching crew, to which the switchman, Hensler, belonged, but the latter worked under the directions of the general superintendent of the whole works, who when he desired a car taken out of the yards or sheds to be shipped, sent his switching crew with the motor for that purpose. The plant, as the evidence all shows, was a very large one and a very large number of workmen were employed therein. The plaintiff was employed in the construction of cars, while the switching crew were engaged in an entirely different branch of the work, to-wit, the transportation or movement of the cars. In a word, these painters were not so associated or related with the'Switching crew that they were required to observe and report any delinquencies on their part, and unless we are to disregard the decisions which we have cited, especially the Banning case, the conclusion cannot be escaped that the plaintiff and the switching crew were not fellow-servants within the meaning of the exception which we have just noted to the general rule exempting masters for the negligence of their servants.

But it is said that while those cases may have been properly decided they were all rendered in railway cases and the doctrine should not be extended to any other class of masters, and we are cited to a sentence in the opinion of Judge Black in the Parker case, in which he says: “Thus, the persons engaged in and about machine shops, foundries and the like are often strictly fellow-servants, though under and subject to the orders of different foremen.” But, this view ignores the other remarks of the learned judge in the beginning of that paragraph where he says that the general rule had been cut down by the courts “because of the gross injustice which it worked out in its application to the great enterprises of the day. ’ ’ We agree that servants of a common master working under different foremen, may be brought into such consociation and relation to each other that they would still be held to be fellow-servants within the meaning and modification of the general rule which was announced by Judge Black in Parker’s case, but we are unwilling to say that the underlying reason of the decisions in the cases we have cited would restrict the rule to railroads alone. The reason of the law is the life of the law, and where a master is operating a great enterprise which calls for various departments in the execution of his work, whether it be a railroad or, as in this case, immense car works for the manufacture and construction of cars, requiring various and distinct branches of labor, he is equally within the rule. The same reason which applied to the owner of a railway must be held applicable to other large manufacturing plants of business. But we are cited to the decision of this court in Grattis v. Railroad, 153 Mo. 380, in which the departmental doctrine is strongly criticised by Judge Marshall, in which decision the majority of this court, including the writer hereof, concurred, but a careful examination of that cfise will show that the final conclusion was that the engineer and fireman on the train in that ease were fellow-servants, and that the negligence of the engineer was the sole cause of the injury to the fireman, and that the master was not liable for the negligence of the engineer. It is true that Judge Marshall makes an extended review of the cases on this subject, but none of the cases which we have cited were overruled. In 2 Lewis’s Sutherland on Statutory Construction (2 Ed.), section 486, it is aptly said: “The maxim, of stare decisis applies only to decisions on points arising and decided in causes; it has been held not to extend to reasoning, illustrations and references in opinions. The precedent includes the conclusions only upon- questions which the case contained, and which were decided. ‘The members of a court,’ says Downey, C. J., ‘often agree in a decision, but differ decidedly as to the reasons or principles by which their minds have been led to a common conclusion. It is, therefore, the conclusion only, and not the process by which it has been reached, which is the decision of the court, and which has the force of precedent in other cases.’ ” So viewed, the decision in the Grattis case did not overturn any of the decisions which we have cited for the purpose of showing what the views of this court have been as to who are and who are not fellow-servants in this State.

In our opinion, the plaintiff was not a fellow-servant with the switchman, whose negligent act, the evidence tended to show, was the cause of the plaintiff’s injuries, and if the court sustained the demurrer to the evidence on the ground that the switchman and plaintiff were fellow-servants, as is asserted by plaintiff, then it committed reversible error.'

II. But there is another view upon which the plaintiff was entitled to have his case submitted to the jury. It is the duty of the master to provide and maintain a reasonably safe place for his servant to work. [Wendler v. Furnishing Company, 165 Mo. 527; Herdler v. Stove & Range Co., 136 Mo. 3; Moore v. Railroad, 85 Mo. 588; Curtis v. McNair, 173 Mo. l. c. 280; Purcell v. Shoe Co., 187 Mo. l. c. 285.]

When then the defendant, through the paint boss, Mehlin, sent the plaintiff to work upon the unfinished car, on one of its tracks, it was its duty to provide against other cars running down against the car upon which he was working and to see that other cars which were pulled out were not attached to the car upon which he was working without giving him warning of its intention to move the said car. While the servant in entering the service of the master assumes the risks that ordinarily and usually are incident to the business being conducted by the master, the servant does not assume the risk arising from the master’s neglect to adopt suitable precaution for his safety. The duty of the master in this regard is a continuing one and it will not suffice to say that when plaintiff went to work on the ear it was a reasonably safe place. If the place was afterwards rendered unsafe by the negligent act of the defendant in sending a switching crew in there who negligently pulled the car upon which plaintiff was working without giving him warning of their intention to move it, then defendant was liable for the consequence of the negligent act of the switchman. The plaintiff had the right to presume, in the absence of knowledge to- the contrary, that the defendant would furnish him a reasonably safe place to work and that he would not imperil his safety by sending its servants in there to move the car upon which he was working without notifying him-. [Doyle v. M. K. & T. Trust Co., 110 Mo. 1.]

But it may be said that the switchman was not the vice-principal of the defendant in moving and directing the car to be moved whereby plaintiff was injured. On this point this court in Moore v. Railroad, 85 Mo. 588, approved the'doctrine laid down by Wood on Master and Servant, page 860, as follows: “Whenever the master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in- person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middle man whom he has selected as his agent, and, to the extent of the discharge of those duties by the middle man, he stands in the place of the master, but as to all other matters he is a mere servant.” In that case, the plaintiff, Moore, was employed as a car repairer, and he was ordered by his foreman to repair the draw-head of one of the freight cars of the defendant company then standing with other freight ears upon the side track of the defendant, and was promised by the foreman that he would protect him while he was so employed in repairing the draw-head. Belying on the promise of the foreman, Moore undertook to repair the draw-head and while engaged thereat, an engine of the defendant came down upon the said side track and against the car standing thereon, and the car upon which, plaintiff was at work was driven back against the freight car standing in the rear thereof and plaintiff’s right arm was cut and crushed between the same. Judge Henry, speaking for this court, said: “It was the duty, a contractual obligation, of the company to provide for the safety of the men at work in repairing the car. The company devolved that duty upon the person who represented it in conducting, ordering and managing the work, and the men engaged in it. It could not impose that duty upon the oar repairers so as to absolve itself from liability for its own negligence. It might make reasonable rules and impose the duty upon the servants to observe those rules for their own safety.” Accordingly, it was held that the plaintiff was entitled to recover on the ground of the failure of the defendant to provide for the safety of the plaintiff. In Dayharsh v. Railroad, 103 Mo. l. c. 575, it was said by this court: “A person employed to perform any of the master’s duties towards his servant is, while that relation continues and in respect to such duties, no fellow-servant of the latter. The duties which the master owes a servant may, in many particulars, be delegated to subordinates, and the wide extent of modem business enterprises often necessitates so doing; but that delegation of authority does not not relieve the mastfer from a proper discharge of.those duties.” In that case a “night hostler” backed an engine upon the plaintiff, who was at work in an ash-pit under the track. It was earnestly contended, in that case, that because the “night hostler” had control and direction of the men necessary to assist him in the round-house, he was a fellow-servant, because, in the actual backing of the engine, he was doing the work of a servant, and was not acting in his capacity as a boss over the men; but this court said: “If he had expressly directed the engine to be moved down by another upon the plaintiff, in the manner described in the evidence, the defendant would have been responsible for the act, and we are unable to perceive any logical or reasonable distinction between so directing it and his performing such negligent act himself, in the circumstances here shown. It was one which fell within his authority as the master’s representative to direct, and it can make no difference in principle whether he did it personally or by another . . . where his act involved an obvious breach of the master’s duty to use care to provide a reasonably safe place for the plaintiff to work.” And it was held that the hostler’s negligence was aseribable to the master. The ash-pit in that case, as was the car track in the Moore case, and the car track in this case, were each safe enough in themselves, but each was rendered unsafe by the acts of the servants of the company in moving their cars and engines against and over the place where the injured servant was at work.

The danger of pulling this car upon which plaintiff was at work, without warning the plaintiff, is apparent from a statement of the facts, but the testimony in this case went further and tended to prove that it was the duty of the''defendant’s switchman, who was entrusted with the work of moving cars, to give the painters warning and see that no car was moved without affording them an opportunity to look out for their safety. Obviously it was a personal duty of the defendant to the plaintiff not to move the car without such warning, but the performance of this duty was entrusted to the switchman and the fact that the switchman was not a servant of high degree does not change or effect the responsibility of the defendant for the negligent manner in which that duty was performed. ■ The act of the switchman was the act of the defendant itself.

The views we have expressed have been approved in many other jurisdictions, notably in Railroad v. Fox, 31 Kan. 586; Railroad v. Hinzie, 82 Tex. 623; Railroad v. Triplett, 54 Ark. 289. We think the testimony on this branch of the case required the court to submit the question of the defendant’s negligence to the jury under proper instructions, and for this reason also the demurrer to the evidence should not have been sustained.

III. As to the plaintiff’s contributory negligence, we think it is obvious that the court had no right as a matter of law to declare that the plaintiff’s own negligence would bar his recovery. It was a question that should have been submitted to the jury under proper instructions. As to the defense of assumption of risks, what we have already said sufficiently indicates our view as to that. Certainly the evidence was not such as would have justified the court in taking the case from the jury.

The judgment is reversed and the cause is remanded for a new trial in accordance with the views herein expressed.

Burgess, J., concurs in the first and third paragraphs; Fox J., in the first and third, but expresses no opinion on the second; Valii ant, Lamm and Wood-son, JJ., concur in toto; and Burgess and Graves, JJ., dissent as to the second, and Graves, J., generally.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. WILLIAM B. SULLIVAN et al. v. REYNOLDS, Judge.
    In Banc,
    January 27, 1908.
    1. RECEIVER: In Custodia Legis. The possession of property taken by a receiver, in pursuance of an order of court appointing Mm receiver, is the possession of tbe court. And such property is in custodia legis.

    2. -: -: Subsequent Suit for Receiver. Suit had been brought against relator and a company in whose name he did business, in the circuit court of St. Louis county, having for its object the winding up of the affairs of the company and the distribution of its assets among its creditors, and said court 209 Supj — 11 had jurisdiction of the parties and subject-matter. It enjoined relator and the company from further prosecuting the business of the company, and appointed a receiver and directed him to take charge of its assets and administer them under the orders of the court, and the receiver duly qualified, entered upon the discharge of his duties and as such took possession of the properties of the company. Held, that the properties were thereafter in custodia, legis, and no other court of concurrent jurisdiction had authority to oust it of its jurisdiction, and hence the circuit court of the city of St. Louis could not, when these facts in the proper way were once called to its attention, proceed to try a subsequent suit, brought by other creditors against the same defendants and also the receiver, and asking that the court appoint a receiver for said company, and compel it and the previously appointed receiver to render an accounting to him and the court for the assets of said company.
    3. -: -: --: Change of Receiver. Nor does the fact that the circuit court of St. Louis county, after it had appointed a receiver, removed him and appointed the Supervisor of Building and Loan Associations receiver, in any wise affect its jurisdiction or render his possession of the properties any the less in custodia legis. The court has legal right to remove a receiver and appoint another, and the legal custody of the property is not distuibed thereby.
    4. -: -•: -: Appeal. The granting- of an appeal from the order appointing the Supervisor of Building and Loan Associations receiver in place of the one removed, whether or not the court properly construed the statute as requiring that officer to be appointed receiver, did not remove him as receiver or release the property from the custody of the law.
    5. -: -: -: -: Bond: Subsequent Order to Receiver to Release Property. Nor did the fact that, after the trial court had allowed an appeal from an order appointing the Supervisor of Building and Loan Associations receiver, the appellant filed a bond that was approved and thereupon the court made an order directing the receiver to turn over all the property to the appellant, which the receiver refused to obey, remove said supervisor as receiver or release the property from the custody of the law, for the trial court had no authority to make such last order at a subsequent term, after final judgment. The effect of the appeal at a subsequent term and the giving of bond is not such as to warrant the court in making an order against the receiver to turn over the property and money in his hands.

      6. -: Application in Another Court. Where a court of competent jurisdiction has appointed a receiver, who is in possession of and administering the property under its orders, another court of coordinate jurisdiction will not entertain a bill to administer the same property and to take it from the possession of the former receiver and to appoint its own receiver.
    7. -: -: Prohibition. And the Supreme Court will by its writ of prohibition prohibit the- other court of coordinate jurisdiction from entertaining such suit.
    8. PROHIBITION: Interfering With Another Court’s Jurisdiction. The writ of prohibition is the proper remedy to prohibit a circuit court from intermeddling or entertaining a suit the subject-matter of which is already in process of litigation in another court of coordinate jurisdiction which has jurisdiction both of the subject-matter and parties.
    Prohibition.
    Peremptory writ awarded.

      Thos. G. Hennings and Robt. F. Walker for relators.
    (1) This is a proper case for prohibition; the object of the writ being to restrain respondent, as judge of a circuit court, from further proceeding therein for want of jurisdiction, in the court, to entertain and try the cause; and the writ will issue equally where the inferior court exceeds or undertakes to exceed its jurisdiction in a cause of which it may take cognizance, no less than in cases where it has no jurisdiction whatever. Morris v. Lenox, 8 Mo. 252; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. "Withrow, 133 Mo. 500; Railroad v. Wear, 135 Mo. 256; State ex rel. v. Scarritt, 128 Mo. 331; High on Ex. Leg. Rem., sec. 789; Spelling on Ex. Relief, sec. 1741. (2) The petition for the writ was filed in time. State ex rel. v. Rombauer, 105 Mo. 103; State v. Elkin, 130 Mo. 90; 16 Ency. PL and Pr., 1133. (3) The appearance of relator in the proceedings sought to be stayed by the writ, by filing his return to the order to show cause,' did not operate to waive the lack of jurisdiction. R. S. 1890, sec. 602; Baker v. Railroad, 36 Mo. 543; Bray v. Marshall, 66* Mo. 122; Kinealy v. Stead, 55 Mo. App. 182; Christian v. Williamson, 35* Mo. App*. 297. (4) Respondent cannot entertain jurisdiction of the proceeding sought to h*e stayed because, although the case falls within a class of cases (i. e., receivership proceedings) of which his court may take cognizance, the subject-matter of the suit (i. e., the res, the property of relator) was already, when the proceeding was instituted, and still is, in the custody, possession and under the control of another court of competent and concurrent jurisdiction, the circuit court of St. Louis county, through its officer, the receiver duly appointed. Mishawaka Woolen Mfg. Co. v. P'owell, 98 Mo. App*. 530'; Mc-Farlan Carriage Co. v. Wells, 99 Mo*. App*. 641; Green v. Tittman, 124 Mo. 372; Railroad v. Sweet, 10 Mo*. App. 276. The property being held by the receiver as such,' is held under judicial process, and cannot be taken under other process of another court. Bank v. Owen, 79 Mo. 429; Metzner v. Graham, 57 Mo. 404; Colburn v. Yantis, 176 Mo. 670; Hudson v. Lamar, 74 Mo. App. 238; Bredell v. Fair Grounds, 95 Mo*. App*. 676*. (5) The property being in the custody of the circuit court of St. Louis county, through its receiver, no one, not even one claiming under title paramount to any of the parties litigant, will be allowed to interfere with the property, even by judicial process; but all claimants thereto will be required to* submit their claims to that court for adjudication and abide its determination with reference* to the disposition of the property. Metzner v. Graham, 57 Mo. 404; Turner v. Railroad, 74 Mo. 602; Heath v. Railroad, 83 Mo. 617; Colburn v. Yantis, 176 Mo. 670; Luley v. Schulenberg, 13 Mo*. App. 595; State v. Netter-ton, 26 Mo. App. 414; Wade v. Ringo, 62 Mo. App. 414; Bank v. Bank, 136 IT. S. 236; Railroad v. Humphreys, 145 U. S. 97; Kerr on Receivers (2 Am. Ed.), chap. 6; Bispham’s Principles of Equity, secs. 579, 580. (6) Actual possession of property in controversy is not necessary to confer complete power on a court of competent jurisdiction, to exercise its authority in determining and finally disposing of the case before it, to the exclusion of any other tribunal. Bank v. Stephens, 169 U. S. 432; Adams v. Trust C'o., 15 C. O. A. 1; Deming v. Marble Co., 12 Abb. Prac. 66.

      Claud D. Hall for respondent.
    (1) "When defendant Sullivan appeared and filed his ‘ ‘ return to restraining order and answer, ’ ’ he waived the question of jurisdiction. Bankers’ Life Association v. Shelton, 84 Mo. App. 630. (2) The fact that the suit of Wehrs v. Sullivan was pending in the circuit court of St. Louis county and is pending on appeal in this court, does not authorize the restraining of this suit by prohibition. In re Alix, 166 U. S. 136; Roper v. Cady, 4 Mo. App>. 593; State ex rel. v. Withrow, 108 Mo. 1. (3) Relator should have sought his redress in the circuit court of the city of St. Louis. 23 Am. and Eng. Eney. Law (2 Ed.), 213 and note; State ex reL v. Gill, 137 Mo. 681; State ex rel. v. Laughlin, 9 Mo. App. 486; Barnes v. Gottschalk, 3 Mo. App'. 111. (4) A writ of prohibition will not lie while the preliminary objection in the inferior court remains undetermined. The reason is that it cannot be assumed' that the lower court will pronounce an erroneous judgment. Bankers ’ Life Association v. Shelton, 84 Mo. App>. 634; Schubach v. McDonald, 179 Mo. 183; 23 Am. and' Eng. Ency. Law (2 Ed.), 214 and note; State ex rel. v. Scarritt, 128 Mo. 338; State ex rel. v. Sale, 188 Mo. 495 ; State ex rel. v. Stobie, 194 Mo. 50; Railroad v. Sweet, 103 Mo. App. 280; Eckerle v. Wood, 95 Mo. App. 386 ; Coleman v. Dalton, 71 Mo. App. 24. (5) If the facts set forth in the petition authorize the court to take any action whatever, prohibition will not lie. State v. District Court, 56 Pac. 224; State ex rel. v. Wood, 155 Mo. 470'; Schubach v. McDonald, 179 Mo. 182; Forsee v. Gates, 89 Mo. App. 584; State ex rel. v. Burckhart, 87 Mo. 538. (6) Writ of prohibition will not be used1 to serve the purpose of a writ of error, or an appeal, especially when these remedies are adequate. Eckerle v. Wood, 95 Mo. App. 386; State ex rel. v. Ross, 136 Mo. 259; Bankers’ Life v. Shelton, 84 Mo. App. 634; State ex rel. v. Scarritt, 128 Mo. 338; State ex rel. v. Evans, 182 Mo. 641. (7) If the court has authority over that class of cases, prohibition will not lie. Eckerle v. Wood, 95 Mo. App. 386; Murphy v. Superior Court, 84 Cal. 3101; Coleman v. Dalton, 71 Mo. App.. 14; Talboy, C. & Co. v. Dist. Court, 33 Colo. 441; People v. Dist. Court, 29 Colo. 1; State v. Neal, 30 Wash. 702; State ex rel. v. Ross, 136 Mo. 259. (8) . The pendency of the suit of Wehrs v. Sullivan does not prevent respondent judge from proceeding with the suit restrained by the rule of prohibition herein. State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Ross, 136 Mo. 259; Rodney v. Gibbs, 184 Mo. 1; Smith v: Lathrop., 84 Am. Dec. 453; Liggett v. Glenn, 51 Fed. 389. (9) The assets in the hands of Watkins, after the appeal was taken and supersedeas bond given and approved, and the order made to restore the assets to the defendant Sullivan, were subject to seizure, and not in custodia legis. Very v. Watldns, 23 How. 469; High on Receivers, sec. 162; Andrews v. Smith, 5 Fed. 833; U. S. v. Towns, 7 Ben. Dist. Rep. 444; Shinn on Attachments, secs. 304, 326; Buck v. C'olbath, 3 Wall. 334; Halliday Case, 27 Fed. 838; State ex rel. v. Hirzell, 137 Mo. 435, and the following cases cited in that opinion, namely: Everett v. State, 28 Md. 205; Ins. Co. v. Hotel Co., 37 Wis. 580; Buckley v. George, 71 Miss. 580; State ex rel. v. Superior Court, 12 Wash. 677; Shields v. Coleman, 157 U. S. 168; Mohrs v. Langan, 162 Mo. 474; Pomeroy, Eq. Rem., 327-328; Alderson, Beach on Receivers, 26 and 131; People’s Cemetery Assn. v. Oakland Cem. Co., 60 S. W. 679; McPike v. Wells, 54 Miss. 136, in which all the cases are cited and explained; Algrem et al. v. Sullivan et al., decided hy TJ. S. Circuit Court, 8th Circuit, Eastern District of Missouri, July 3, 1907.
   WOODSON, J.

This is an original proceeding instituted in this court, seeking to prohibit the respondent, as judge of the circuit court of the city of St. Louis, from taking and' further exercising jurisdiction over the parties to, and the subject-matter involved in, the case of Louis- F. Algrem et al. vs. William B. Sullivan et al., pending in the circuit court of said city.

The facts in the ease are not disputed, and are substantially as follows, as disclosed by the petition for the preliminary writ and the return thereto of the respondent, to-wit:

At the May term, 1905,.of the circuit court of St. Louis county, Missouri, one Herman H. Wehrs filed a petition in said court against William B. Sullivan, doing business as the Home Cooperative Company, asking an injunction and the appointment of a receiver for the assets of said William B. 'Sullivan, doing business as aforesaid. A receiver, Francis A. Tillman, was appointed, gave bond, took charge of the property of said company, and begun to administer and settle its business. At the September term, 1905, the said circuit court entered a final judgment in said cause, making the injunction permanent and confirming the appointment of the receiver,Tillman.

At the subsequent term of said circuit court an order was entered of record requiring said William B. Sullivan and the contract-holders and creditors of said Home Cooperative Company for which Tillman had been appointed receiver, to appear before the court on April 7, 1906, and show cause why the judgment or decree in said cause making the injunction permanent and confirming the appointing- of Tillman as receiver of said company should not he vacated and set aside. On April 7,1906, the order to show Gause was continued until April 11, 1906; on this day one William L. Watkins, Supervisor of Building & Loan Associations of the State of Missouri, filed what he termed an inter-plea, asking the court to vacate and set aside the judgment or decree heretofore rendered in this cause, to remove Tillman as receiver and to appoint him, Watkins, as receiver under the alleged authority of a statute of Missouri, approved April 21, 1903. [Laws 1903, pp. 110-113.]

The court at a subsequent term (April 21, 1906) made an order setting aside and vacating its judgment and decree entered at a former term confirming the appointment of said Tillman as receiver, removed the latter, and entered an interlocutory order appointing William L. Watkins, as supervisor of Building and Loan Associations, receiver of said Home Cooperative Company. An order was entered requiring said Tillman to turn over all the assets of said company to Watkins, which was done, and Watkins as supervisor and receiver took charge of the assets and representatives of value of said company. William B. Sullivan therepon filed a motion to set aside the interlocutory order appointing said Watkins, as supervisor, receiver of said Home Cooperative' Company, which was by the court overruled, exceptions were saved thereto and an affidavit for- appeal to the Supreme Court filed, which was by the trial court denied. Said Sullivan thereupon applied for and was granted a writ of mandamus on said trial judge, requiring him to grant am appeal from his refusal to vacate and set aside the interlocutory order appointing said Watkins, as supervisor, receiver of said Home Cooperative Company. For his return to said writ of mandamus the trial judge granted said appeal and the same was perfected and is now pending and undetermined in this court. Upon the granting of this appeal William B. Sullivan, the appellant, entered into a bond in the sum of $20,000, which was approved by the trial court, and the assets of said company ordered to be turned over to him or to his attorney, Thos. C. Hennings, which was not done, but said Watldns continued in possession of said assets, still has possession of same and has not delivered or surrendered said assets or any part of same to said William B. Sullivan or his attorney. ,

Subsequently, at the April term!, 1907, of the circuit court of the city of St. Louis, in which Hon. Matt Or. Reynolds was presiding as judge, Louis P. Algrem et al. filed a petition in said circuit court against William B. Sullivan, doing business as the Home Cooperative Company and William L. Watldns as receiver of the said Home Cooperative Company, and asked in said petition, among other things, that the court appoint a receiver for the said Home Cooperative Company, alleging that they, the plaintiffs, were contract-holders and interested in the distribution of its assets. The nature and purpose of this proceeding in the circuit court of the city of St. Louis was to require William B. Sullivan as the Home Cooperative Company nominally, and William L. Watldns actually, as receiver, to render an accounting to said circuit court of the assets of said Home Cooperative Company then in his possession as such receiver, and to have said circuit court appoint a receiver for said assets and to restrain and enjoin said Sullivan and said Watkins as receiver from transferring or in any way controlling or disposing of said assets, and that said circuit court assume, through its own receiver, the custody, control and final distribution of the assets of said company. The said petition by Algrem et al. in the circuit court of the city of St. Louis also set forth the fact that a receiver had theretofore been appointed for the assets of the said Home Cooperative Company in the circuit court of St. Louis county, and that an appeal had been taken in said case to the Supreme Court, where same was then pending and undetermined.

The said circuit court of the city of St. Louis, in which respondent was then and there presiding as judge, upon the filing of said petition, issued therein a restraining order restraining and enjoining William B. Sullivan and William L. Watkins as receiver and their servants and agents from, disposing of or transferring any of the assets of said Home Cooperative Company until the further orders of the court, and further ordered that said Sullivan and said Watkins as receiver be and appear before said court on May 6, 1907, and show cause why a receiver should not be appointed for said Home Cooperative Company and why a temporary injunction should not be granted against said defendants restraining and enjoining them from disposing of or transferring the assets of the said Home Cooperative Company. On the said 6th day of May, 1907, the said circuit court permitted said plaintiffs to file an amended petition in said cause, setting forth the same cause of action, asking the ¿ppointment of a receiver for said assets and such other relief as had been asked in said original petition, but in addition thereto setting forth the forms of contract used by said Home Cooperative Company when same was engaged in business, and adding the names of two defendants who are not alleged to hold or control any of said assets. Thereafter, on the said 6th day of May, 1907, the said Sullivan and Watkins, through their counsel, made return to the restraining order issued by and the petition filed in said circuit court of the city of St. Louis, in which they allege as grounds why such restraining order should be dissolved, and said' accounting, injunction and the appointment of a receiver and other relief prayed for in said petition should be denied, the following among other things: that another court of competent and concurrent jurisdiction than the one before which this proceeding is brought, to-wit, the circuit court of St. Loins county, has heretofore, in a proceeding commenced before it, taken possession of the same property of the said Home Cooperative Company sought to be adjudicated in this proceeding, and has appointed William L. Watkins, Supervisor of Building and Loan Associations of the State of Missouri, and one of the defendants herein, receiver for said assets and that he has taken possession and now has the custody of same, and an appeal has been perfected from the motion refusing to vacate the interlocutory order appointing said William L. Watkins receiver to the Supreme Court, where this entire matter is now pending and undetermined, and that the circuit court of the city of St. Louis has no jurisdiction or authority to hear or determine any of the matters or things for which relief is prayed in the petition herein; that the assets of the said Home Cooperative Company are now wholly under the control and subject to the rulings, orders, judgments and decrees of other courts of competent, concurrent and appellate jurisdiction, to-wit, the circuit court of St. Louis county, and the Supreme Court of Missouri, and that the circuit court of the city of St. Louis has no jurisdiction or authority to hear or determine any matter in any manner affecting the custody or control of said assets, and that the control and authority in this matter by other courts of coordinate and appellate jurisdiction are fully set forth and disclosed in the said petition of Louis F. Algrem et al.

On the 9th day of May, 1907, upon a hearing upon said return to the restraining order by the said circuit court, the Hon. Matt Gr. Reynolds, presiding therein as judge, no action was taken by the court, whereupon the defendant, William B. Sullivan, filed a motion in said circuit court asking the court to dismiss said suit and alleging the same grounds therein that had been set forth in defendant’s return to the restraining order and answer to the petition; that the said circuit court- made no ruling or order of record upon said motion to dismiss said cause; but continued to assume jurisdiction in said proceeding, and on the same day ordered summons to be issued in said cause for the two additional defendants named in plaintiffs’ amended petition. Defendant William B. Sullivan, through his counsel, thereupon made application to Hon. L. B. Valliant, one of the judges of this court, for a preliminary writ of prohibition, and upon an inspection of the petition submitted by defendant William B. Sullivan, a preliminary order was made by the Hon. L. B. Valliant, and the Hon. Matt Gr. Reynolds, judge of the circuit court of the city of St. Louis, was prohibited from further acting in said' proceeding and required to show cause to the Supreme- Court on May 29, 1907, why he was assuming jurisdiction and exercising authority in the matter of the appointment of a receiver for said Home Cooperative Company, and in the other matters in which relief is prayed in the petition of Louis F. Algrem et al. Upon the filing, of a return to said preliminary order by said respondent, the Hon. Matt. Gr. Reynolds, the relator W. B. Sullivan filed' a motion for a judgment on the pleadings, and the preliminary order was by the Supreme Court continued until the October term, 1907.

I. The contention of relator is that, when the circuit court of St. Louis county assumed jurisdiction of the case of Wehrs v. Sullivan et ah, and appointed Tillman receiver, who; as such, took charge of the assets of the company, no other court of concurrent jurisdiction had the authority to oust it of its jurisdiction over the cause or to interfere with the assets of the company in any manner, for the reason that they were in custodia le gis. They also contend that this result is not changed by the fact that the circuit court of St. Louis county subsequently removed the receiver, Tillman, and appointed another in his stead, nor by the fact that the latter proceeding was questioned by Sullivan, which resulted in an appeal of that case to this court.

The record in this case discloses that the case of Wehrs v. Sullivan et al. was a proceeding in the nature of a proceeding in re», instituted in the circuit court of St. Louis county, having for its object and purpose the winding up of the affairs of the Home Cooperative Company and the distribution of the assets thereof among its creditors, as provided by law. That said court had jurisdiction of the parties and the subject-matter of said cause is not questioned by respondent. In due form and in conformity with the law of the land, said court enjoined Sullivan and the company from further prosecuting the business, and appointed a receiver to take charge of the assets of the company and ordered him to hold and administer them under the orders and direction of the court. In pursuance to this order the receiver duly qualified and entered upon the discharge of .his duties, as such, and reduced to possession the assets of the company. That possession was the same as the possession of the conrt, for the reason that the receiver is an arm or officer of the court which appointed him, and whatever he does under the order of the court regarding the property involved is the act of the court. [High on Receivers (3 Ed.), sec. 134; Ex parte Haley, 99 MO. 150; Colburn v. Yantis, 176 Mo. 670; Robinson v. Railroad, 66 Pa. St. 160; Skinner v. Maxwell, 68 N. C. 400; DeVisser v. Blackstone, 6 Blatchf. 235; Mays v. Rose, Freeman’s Ch. (Miss.) 703; Day v. Postal Telegraph Co., 66 Md. 354; Angel v. Smith, 9 Ves. Ch. 335; In re Butler’s Estate, 13 Irish Ch. 456.]

Clearly, under the facts of this case and according to the law enunciated by the above authorities, the assets of the Home Cooperative Company were in custodia legis on April 11th, 1906, the day on which Watkins, the Supervisor of Building & Loan Associations, filed his bill in the nature of an interplea, asking the court to vacate and set aside the judgment and decree theretofore rendered appointing Tillman receiver, and asking that he be appointed receiver under the Act of 1903, pp. 110-113.

The legal custody of the property was not disturbed or changed by the order of the court made at a subsequent term removing Tillman as such receiver and appointing Watkins in his stead. [Very v. Watkins, 23 How. (U. S.) 469; Shields v. Coleman, 157 U. S. 178-179.] That order of the court was but the removal of one receiver and the appointment of another in his stead, which the court had a perfect legal right to do. [High on Receivers (3 Ed.), sec. 821.]

Thus far there seems to be no special difference between the relators and the respondent, but the point of their legal divergence begins where the circuit court of St. Louis county granted an appeal from its order refusing to set aside its order appointing Watkins, Supervisor of Building.& Loan Associations, receiver of the Home Cooperative Company, and ordering him to turn the assets of the company back to Sullivan. The respondent contends that the legal effect of that order was to ipso facto release said property and assets from the custody and control of the St. Louis County Circuit Court, and thereby subjected them to seizure and liable to be taken in custody by a receiver to be appointed by the circuit court of the city of St. Louis in the ease of Algrem et al. v. Sullivan, which has jurisdiction of that class of cases to which the one at bar belongs.

This contention of respondent is denied by relators, and they assign two reasons why it is not tenable:

First. That the granting of the appeal from the order refusing to set aside the appointment of Watkins did not remove him as receiver of the assets of said company.

Second. That the granting of the appeal from said order and approving the appeal bond after the lapse of the term at which final decree was rendered did not warrant that court in making the order to turn the assets of the company over to Sullivan.

We will briefly discuss those two' points in the order presented.

As to the first, the return shows that Sullivan filed a motion to set aside and vacate the order appointing Watkins receiver of the assets of the Home Cooperative Company, which was by the court overruled, from which order of refusal Sullivan appealed to this court. Instead of this order having the effect of removing Watkins from the receivership' of the Home Cooperative Company it states expressly in so many words, that the court refused to remove Watkins, and it was from that order Sullivan appealed. If the order removed Watkins, then what was-the sense in Sullivan’s appeal from the order? He would be asking this court to do for him that which the court below has already done for him. So, it is thus seen that Watkins is still receiver of those assets, and whether rightfully or wrongfully is wholly immaterial in this case, but that phase of the case will receive due consideration when we reach that question on the appeal.

And as to the second point suggested, it seems to be settled that the granting of the appeal and approving the appeal bond by the court did not warrant the court in, ordering the receiver to turn the assets of the company back to Sullivan. In discussing this question Mr. High says: “After the title to property has become vested in a receiver, by virtue of the order appointing him, it cannot he divested merely upon the order of the court made in a proceeding to which he was not a party. And where, pending litigation, property is in the hands of a receiver who is vested with the usual powers of such officers, and the defendants to the litigation pray an appeal from the final decree of the court below, the effect of the appeal and giving bond thereon is not such as to warrant the court in granting an order against the receiver to turn over the property and money in his hands, and he will still be allowed to retain possession, notwithstanding the appeal.” [High on Receivers (3 Ed.), sec. 161; Schenk v. Peay, 1 Dill. 267.]

While the rule above stated may be some broader than the law as declared in the case of State ex rel. v. Hirzel, 137 Mo. 435; but, however that may be, that law is applicable when the appeal is not taken until after the term of the court has expired at which the final decree was rendered; then, a fortiori, it should apply where the order is only substituting one receiver for another, and especially where the final decree of the court is not questioned by the appeal.

If the circuit court of St. Louis county had made in express terms an order at a subsequent term setting-aside the final decree granting the injunction and ordering the receiver appointed, it would have been absolutely void and of no effect, because that court had no authority to make such order after the expiration of the term at which the decree was made. And there is nothing in the Hirzel case, supra, which indicated anything to the contrary. [State ex rel. v. Walls, 113 Mo. 42; Appo v. People, 20 N. Y. 531.]

In the former case the judge of the court which tried the case, after overruling the motion for a new trial, died, but before signing the bill of exceptions. His successor in office attempted at a subsequent term of the court to set aside the judgment and grant a new trial. In that case this court held that prohibition would lie to prevent the successor in office from setting aside the judgment previously entered for want of jurisdiction in the court to make the order. The decision was not based upon the ground that the matter involved had been adjudicated and could not on that account be again litigated, but was based squarely upon the ground that the court had -no jurisdiction to make the order.

The same proposition was involved in the Appo case, supra, and it was there contended that when the inferior court or tribunal has jurisdiction of the action or of the subject-matter before it, any error in the exercise of that' jurisdiction can neither be corrected nor prevented by a writ of prohibition. In the discussion of that proposition the Court of Appeal of New York said: “It is true that the most frequent occasions for the use of the writ are where a subordinate tribunal assumes to entertain some cause or proceeding over which it has no control. But the necessity for the writ is the same where, in a matter of which such tribunal has jurisdiction, it goes beyond its legitimate powers; and the authorities show that the writ is equally applicable to such a case. . . . These cases prove that the writ lies to prevent the exercise of any unauthorized power, in a case or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction. The broad remedial nature of this writ is shown by the brief statement of a case by Fitzherbert. In stating the various cases in which the writ will lie, he says: ‘And if a man be sued in the spiritual court, and the judges there will not grant unto the defendant the copy of the libel, then he shall have a prohibition directed unto them for a surcease,’ etc., until they have delivered the copy of the libel, according to the statute made Anno, 2 H., 5 (F. N. B. title Prohibition). This shows that the writ was never governed by any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed. I have no hesitation, therefore, in holding that this was a proper case for the use of the writ. ’ ’ [Appo v. People, 20 N. Y. l. c. 541-2.]

And the same conclusions have been reached by this court in the following cases: Morris v. Lenox, 8 Mo. 252; Railroad v. Wear, 135 Mo. l. c. 256; State ex rel. v. Scarritt, 128 Mo. l. c. 338-9; High on Ex. Legal Rem., sec. 789; Spelling on Ex. Legal Rem., sec. 1741.

Should it later turn out that Tillman was improperly removed, and that Watkins was improperly appointed, then the custody of the property would still be, in contemplation of law, in Tillman; and should it appear that Tillman was properly removed and that Watkins was improperly appointed in his stead, the property would still be in custodia legis, and the court could appoint someone else to take charge of and administer it under the directions of the court.

“The subject of the removal or discharge of receivers, although to a considerable degree regarded as a matter of practice and to be discussed as such, is, nevertheless, deemed of sufficient importance to- merit separate treatment. The power of a court of equity to remove or discharge a receiver whom it has appointed may be regarded as well settled, and it may be exercised at any stage of the litigation. Indeed, it would seem to be a necessary adjunct of, the power of appointment, and to be exercised as an incident to or consequence of that power; the authority to call such officer into being necessarily implying the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions, or for other cause.” [High on Receivers (3 Ed.), sec. 820; In re Colvin, 3 Md. Ch. 300; Siney v. Stage Co., 28 How. Pr. 481; First National Bank v. Barnum Wire & Iron Works, 58 Mich. 315.]

And it is equally well settled that the court in' its sound discretion may remove the incumbent and substitute another in his stead. [High on Receivers (3 Ed.), sec. 822; Siney v. Stage Co., 28 How. Pr. 481; Railroad v. Soutter, 154 U. S. 540; Crawford v. Ross, 39 Ca. 44.]

II. Having thus shown and decided that the property and assets of the Home Cooperative Company are still in gremio legis, it now devolves upon us to determine whether or not the circuit court of the city of St. Louis has the authority and jurisdiction to restrain and enjoin the receiver appointed by the circuit court of St. Louis county from interfering with the property of the company and from performing other functions as such and to appoint another receiver to take charge of and administer the same assets under its own orders and directions.

This is no novel question to the jurisprudence of this State and country.

Mr. High, in his excellent work on Receivers, in the discussion of this question says: “Indeed, when a court of competent jurisdiction has appointed a receiver, who is in possession of and administering the property under its orders, another court of coordinate jurisdiction will not entertain a bill to administer the same property, and to take it from the possession of the former receiver, and to appoint its own receiver. In such a case the parties aggrieved should seek relief in the court which is already in possession of the property through its receiver. So the prior 'jurisdiction of a court of equity powers over the subject-matter of the appointment of a receiver, and the pendency of a motion for an injunction and a receiver in such court, exclude the interference of that court in a subsequent suit for the same relief. And the appointment of a receiver in the suit thus subsequently begun will be held inoperative as against the appointment made in the former cause.. So if the court first appointing a receiver has jurisdiction, its receiver will not be dispossessed of the property at - the suit of a receiver subsequently appointed by a court of coordinate jurisdiction; and this is true, regardless of whether the original appointment was or was not- erroneous. And a receiver being an officer of court, and being bound to account to the court appointing him for all funds which he receives in his official capacity, he cannot be compelled by an order of another court to pay over money in his hands as receiver in satisfaction of an execution issued upon a judgment of such other court, since such a procedure would necessarily have the effect of producing a conflict of jurisdiction, and would prevent the receiver from compliance with the obligations of his bond given to the court appointing Mm.” [High on Receivers (3 Ed.), sec. 48.]

TMs seems to be the umversal holding of the State and the United States courts upon that subject. [Young v. Railroad, 2 Woods 606; Young v. Rollins, 85 N. C. 485; Bonner v. Hearne, 75 Tex. 242; Nelson v. Conner, 6 Rob. (La.) 339; Metzner v. Graham, 57 Mo. 404; Heath v. Railroad, 83 Mo. 617; Colburn v. Yantis, 176 Mo. 670; Mishawaka Mfg. Co. v. Powell, 98 Mo. App. 530; Keegan v. King, 96 Fed. 758; Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall. 334; White v. Schloerb, 178 U. S. 542; Chicago Union Bank v. Bank of K. C., 136 U. S. 223-236; Railroad v. Humphreys, 145 U. S. 97.]

The difficulty with which the courts meet is not what is the law upon the question, but what is the proper remedy to be applied to such cases when they arise. All the authorities sustain the proposition that when a court of equity acquires jurisdiction of a cause, and appoints a receiver to take charge of the property involved, then no other court of coordinate jurisdiction has any power or authority to' interfere or meddle with the property in-the hands of the receiver, but must leave the court appointing the receiver untram-i meled in its administration of the same, as the law directs. But the question now presented is, in what way or manner is that interference to be proMbited where such court persists in encroachments upon the jurisdiction of the other? The law upon this subject lacks much of being uniform in tMs country. Some of the courts hold that the remedy is by appeal or writ of error; others by injunction or prohibition against the parties prosecuting the suit; while still others hold that prohibition against the court is the proper remedy.

It would serve no good or useful purpose to review the great number of adjudications upon tMs question, giving the various reasons assigned why one remedy, rather than another, should be resorted to. Especially is this true when the facts of each case largely determine the kind of remedy to be applied thereto.

And since this is a proceeding by prohibition, we will content ourselves with an investigation of the law upon that subject, and then determine whether or not the permanent writ should issue herein.

It would be well to bear in mind that the legitimate scope and purpose of the writ of prohibition is to keep inferior courts within the limits of their own jurisdiction, and to prevent them from encroaching upon the jurisdiction of other tribunals. [High on Ex. Legal Rem. (3 Ed.), sec. 782.]

The authorities heretofore cited, both State and Federal, establish beyond question, that courts of coordinate authority have no power or jurisdiction to encroach upon or intermeddle with the power and authority of each other after one has taken jurisdiction of- a case. Whenever the jurisdiction of a court of competent authority takes jurisdiction of a case that fact must of necessity and in the. very nature of things exclude the jurisdiction of all other courts over the same case, as well as all the incidents thereto, excepting only such courts as are given appellate and supervising control over them. The reason for this rule seems to be that when such a court takes jurisdiction of a particular case, with all the incidents thereto, there remains nothing of it to- which the jurisdiction of another court can attach — no case, no parties, no subject-matter is left exposed to- the authority of the latter court..

The mere fact that the law of the State confers upon the circuit court of the city of St. Louis jurisdiction of that class of cases to which the case at bar belongs in no manner militates against the rule of law above stated, for the reason that it was never the intention of the lawmakers to authorize that court or other courts to assume authority over particular cases, pending in a court of coordinate jurisdiction at the time it or they are asked to move in the matter.

As each cause of action arises, and when suit is brought thereon in a court of competent jurisdiction, it is thereby segregated, as it were, from the general class to which it belonged, and is thereby withdrawn from the authority and jurisdiction of all other courts of coordinate jurisdiction.

This is the plain meaning of the law, and is as much a part of it as if written in the statute prescribing the jurisdiction of such courts, because it has been written that “a thing which is in the intention of the makers of a statute is as much within the statute as if it were within the letter.” [Riddick v. Walsh, 15 Mo. l. c. 535; In the Matter of Bomino’s Estate, 83 Mo. l. c. 441; Humes v. Railroad, 82 Mo. l. c. 227.]

This question came before the Supreme Court of Michigan upon the following facts. “The relator, in an action instituted by him in the superior court of Detroit, recovered against Scripps a considerable judgment. The superior court is a court of jurisdiction in matters of law and equity coordinate with that of the circuit court of this State, and limited only territorially. After the recovery a motion was made by the defendant for a new trial, which was argued in the superior court and denied. The defendant then removed the case to this court by writ of error, and at the last October term the judgment of the superior court was affirmed. At the present term a motion was made and argued for a rehearing, which was denied. The purpose of these proceedings in this court was, of course, to obtain a new trial. While this was the position of the case, the suit was instituted in the Wayne Circuit Court. The bill alleges misconduct in the jury in the principal suit, and asks to have the judgment canceled because of it. Though, not in terms praying for a new trial, the bill manifestly has that for its purpose, and is as much a bill for a new trial as if that had been the relief expressly prayed. ’ ’ After stating the facts as above that great jurist and law-writer, Chief Justice Cooley, said: “From this statement of facts it will be very evident the circuit judge has made a mistake in assuming jurisdiction of the case and making orders in it. The matter is not one which, under the circumstances, can come under his cognizance; other courts have control of the controversy with all its incidents, and have ample competency to do in respect to it whatever may remain to be done. It is a familiar principle that when a court of competent jurisdiction has become possessed of a case, its authority continues, subject only to the appellate authority, until the 'matter is finally and completely disposed of; and no court of coordinate authority is at liberty to interfere with its action. The principle is essential to the proper and orderly administration of the laws; and while its observation might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely. The country has witnessed some such conflicts in which Federal and State courts of coordinate powers have unguardedly or unadvisedly undertaken to hamper or restrain each other’s action; and the mischiefs of which such cases are suggestive are quite as likely to arise when courts existing as part of the same system intrude with their process upon each other’s authority.” [Maclean v. Wayne Circuit Judge, 52 Mich. l. c. 258-9.] The peremptory writ of prohibition was issued in that case.

The same question came before this court in the case of State ex rel. v. Ross, 122 Mo. 435. In that ease the question under consideration was squarely made and quite extensively discussed, fully showing the reasons why the writ should go, but did not order the writ to issue upon the, grounds here presented. That opinion was based upon the fact that there was no suit pending in the common pleas court at the time the petition was filed therein asking for the appointment of a receiver; and for that reason this court held that that court had no power or jurisdiction to appoint a receiver, and thereby obviated the necessity of passing directly upon the question as to whether or not prohibition was the proper remedy in this class of cases. But the reasoning of the court is equally applicable to the facts of this case. The following extracts from that opinion will show the views of this court regarding the proper remedy in such cases:

1 ‘ The relator contends that the common pleas court never acquired jurisdiction to appoint a receiver of said railway company’s property, for two reasons: First, because there was not, at the time the judge of said court assumed the authority to make such appointment, nor since has been, an action pending in said court in which a receiver could be appointed; and, second, because a.t the time said judge assumed authority to make such appointment, a receiver had already been legally appointed in a cause pending in the circuit court of Stoddard county, a court of competent jurisdiction, to make such appointment. . . . The writ of prohibition is a familiar mode of the exercise of this power, and is an appropriate one to restrain the exercise of jurisdiction by a subordinate court over a subject-matter when it has none and is loudly called, for when such jurisdiction is asserted against a court that has jurisdiction and is asserting it, and when the officers of each acting under its orders a.re liable at any moment to come into physical conflict over the possession of the subject-matter in controversy.” [pp. 455 and 464.]

It is wholly immaterial whetheir the common pleas court had no jurisdiction because no suit was pending at the time the receiver was asked for or because the Stoddard Circuit Court had previously acquired jurisdiction of the case; either or both of those facts would have prevented the jurisdiction of the common pleas court from attaching to the case, or to the subject-matter thereof; and in both cases prohibition was the proper remedy.

A kindred case to the one under discussion and identical in principle came before this court in State ex rel. v. Wear, 129 Mo. 619. In that case the regular elected and qualified judge of the court was disqualified from trying the case, and he called in Judge Riley, a judge from another circuit, to try same. The judge from the other circuit responded to- the request and assumed jurisdiction of the same. Subsequently, the regular judge appeared in court and attempted to repossess himself of the jurisdiction. A rule was issed from this court requiring Judge Wear to show cause why a writ of prohibition should not issue. In discussing that question this court in substance said: That when the judge of the other circuit responds to try the cause in which the regular judge is disqualified, jurisdiction of the former attaches from the time of his appearance and continues until the final determination of the cause. It then issued a peremptory writ of prohibition against Judge Wear, preventing him from interfering with the former in the exercise of his duties as such judge.

In the case just mentioned, when Judge Wear became disqualified to try the cause and called in Judge Riley to try it, and when he appeared in court in response to that call, those acts amounted to a change of venue of the cause from one judge to the other, which completely divested the former of all jurisdiction over the matter and invested the latter with full powers to act in the premises. It was the lack of power in Judge Wear to proceed with the cause, and the jurisdiction of Judge Riley over the same which caused this court to interfere by way of prohibition.

The same would have been true on principle had the change been from the court instead of from the judge, and- the cause had been sent to another circuit. In such case the court granting the change would have lost all jurisdiction over the case, and the one to which it was sent would have become possessed of that jurisdiction as fully and completely as the former had before the change was granted. Had this state of facts existed and had the former court attempted to re-assume jurisdiction of the cause, we presume it will not be contended that the writ would have been improperly issued against such court. And it would be justified upon the same grounds it was granted against the judge in the Wear case, namely, because the former court would have been shorn of all authority over the cause, and it would have been completely transferred to and vested in the latter by the change of venue. And that would have been true notwithstanding the facts that both courts were courts of general jurisdiction and each having jurisdiction over the class of cases to which the one there involved belonged.

If the foregoing reasoning is logical, and the conclusions reached are sound, which, it seems to us, cannot upon principle or authority be questioned, then by what semblance of reason or authority can it be contended that the jurisdiction of the circuit court of St. Louis county over the case of Wehrs v. Sullivan et al., which is complete as to the parties and the subject-matter thereof, can be interfered with or acquired by the circuit court of the city of St. Louis? The jurisdiction of the parties and the subject-matter of the cause was as complete- and perfect in the St. Louis County Circuit Court as the jurisdiction of Judge Riley was over the matters in the Wear case, supra, or the jurisdiction of the court (in the supposed case) to which a cause had been sent by change of venue. It, therefore, seems clear to us that if the jurisdiction of a court over a cause is divested by a change of venue and invested in another court of coordinate jurisdiction, and that fact deprives the former of all authority to act thereafter in the premises, and that prohibition will lie to prevent it from so acting, then by 'parity of reasoning it seems that a similar court with like authority could not of its own motion, nor upon petition filed therein, acquire jurisdiction over a cause of action already pending in another court possessing like powers and jurisdiction.

In other words, the same reasons laid down by the authorities for holding that a court so divested of jurisdiction over a cause has no authority to retake jurisdiction thereof sustain the contention of the relators, that a court which has not taken jurisdiction of a particular case cannot acquire jurisdiction to try or otherwise intermeddle with that case if pending in another court of coordinate jurisdiction at the time it attempted to so take jurisdiction thereof; and this is true even though it had jurisdiction over the class of cases to which that one belonged.

It is the possession of jurisdiction of the court over the particular case in litigation that segregates and takes it from the general class of cases to which it belongs which excludes the jurisdiction of another court of coordinate jurisdiction from attaching to the same cause; and the reason for this is apparent, because it no longer belonged to the class of cases over which the latter court has jurisdiction at the time the second suit was filed therein; it had become extinct or ceased to exist as a cause of action so far as the latter court was concerned, and had become merged, as it were, into an action pending in another court.

The authorities herein cited and the conclusions before reached are in no manner in conflict with the law as enunciated in the ease of State ex rel. v. Withrow, 108 Mo. l. The facts of that case were these: John M. Glover had been appointed by the probate court of the city of St. Louis administrator of the partnership estate of Glover & Shepley. On April 24, 1889, he was moved from that office and John R. Shepley was appointed in his stead. On October 3, 1889, Glover filed a final account of his administration in the probate court. This was done after requests by Shepley, but no motion was filed by Shepley in the probate court, nor was Glover cited to appear. Shepley filed exceptions to the account on January 21, 1890, and Glover filed another amended account to which Shepley also filed exceptions. Shepley thereafter tried to get the probate court to pass on the exceptions, but Judge Woerner declined to do so on the ground that Glover was not before him and he had no jurisdiction over the account unless the statutory method was followed, or Glover would appear and submit himself to the jurisdiction of the court. During the year 1889 and ever since Glover was living in Colorado. At the June term., 1890, of the circuit court, .Shepley brought suit on the bond of Glover, alleging as breaches: First, that Glover had failed to account as required by law; second, that he had failed to settle with his successor; third, that he had failed' to pay over and deliver to his successor the sum of $86,000' in his hand's. The defendants in said action filed an answer in which they set up, first, a plea to the jurisdiction of the circuit court on said bond; second, a plea that another cause of action was pending in the probate court between the same parties and involved the same issue. A trial was had on both pleas and both were adjudged bad. The circuit court then proceeded to try the cause on the merits when the provisional writ of prohibition was issued for the judge thereof to show cause why he should not be prohibited from trying the case.

In that case the probate court had original and exclusive jurisdiction to hear and determine the except tions filed therein to the account of Glover, while the circuit court had original jurisdiction of an action against him and his securities for a breach of his administrator’s bond. The courts were not courts of coordinate jurisdiction, not even as to the matters pending therein. And this court, speaking through Gantt, P. J., in that cause, said: “Now when we say ‘two courts of concurrent jurisdiction,’ we must concede that both courts have jurisdiction of the same matter. For the purposes of this case, it is sufficient to determine that the circuit court of St. Louis had jurisdiction of the action against relators; if it did, then prohibition will not lie, and the fact that it may erroneously decide some of the questions before it will not alter the case.” [State ex rel. v. Withrow, 108 Mo. l. c. 8.] It is thus seen that the express reason assigned by Judge Gantt for refusing the writ was that the circuit court had jurisdiction of the subject-matter of the cause therein pending*, to-wit, the breaches of the conditions of the administrator’s bond. While there may be some statements in that opinion if considered abstractly and not in connection with the facts of that case which might lend color to the respondent’s contention in this case, yet when applied to the facts of that case every vestige of it fades away and leaves no semblance of authority for their position.

III. There is no race-between the creditors mentioned in the suit pending in the circuit court of St. Louis county and those named in the case instituted in the circuit court of the city of St. Louis for the possession of the property in. question. The receiver of whichever court is adjudged to be the rightful one will hold and administer the assets of the company for the benefit of all its creditors alike. This is academic in its nature, and it, therefore, needs no citation of authorities in support of it.

If the condition of things that exists in this, matter is permitted or tolerated there would be an inevitable conflict between the two courts and the officers of each in the service and- execution of their respective orders and processes. This would not only interfere with the orderly and speedy administration of the law, but might lead to physical conflicts between those officers in their efforts to obey those orders and judgments. The result would lead to confusion, chaos and anarchy within the very temples of justice, and sanctioned by the highest tribunal of the State. Such a condition should not be tolerated.

We are, therefore/ clearly of the opinion that the circuit court of the city of St. Louis has no jurisdiction in the premises, and that the peremptory writ of prohibition should issue against that court prohibiting it from proceeding further in the cause. It is so ordered.

All concur.