text:
    THE STATE ex rel. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, v. JESSE C. SHEPPARD, Judge of the Butler Circuit Court.
    In Banc,
    July 2, 1912.
    1. DRAINAGE DISTRICT: Change of Venue. A landowner, in a proceeding to incorporate and establish a drainage district, has the right to take a change of venue from the circuit court of the county in which the proceeding was instituted, to the circuit court of some other county in the State. He has the same right to a change of venue in such a proceeding that he has to a change of venue in any other civil action.
    2. -: -: Carries Entire Cause. The granting of a change of venue, in a proceeding to incorporate and establish, a drainage district, carries the entire cause to the court to which the change has been granted, and leaves no vestige of it in the court from which the change' has been taken, and the latter has no jurisdiction or authority to proceed further in the case.
    Prohibition.
    Writ denied.

      Robert T. Railey and Robert A. Anthony for relator.
    (1) The decree rendered by the Butler Circuit Court incorporating “Little River Drainage District,” fixing its boundaries and its term of corporate existence, exhausted the issues set up in the “articles of association,” and was a final judgment rendered in a “civil suit” from which an appeal would lie to this court. State ex rel. v. Riley, 203 Mo. 175; Land & Stock Co. v. Miller, 170 Mo. 240; Little River Drainage District v. Railroad, 236 Mo. 94; In re Drainage District v. Richardson, 227 Mo. 252. (2) The decree incorporating Little River Drainage District being a final judgment, and being fully responsive to the facts set up in the articles of association, the prayer appended thereto as well as the authority granted by the statutes, the power and authority vested in the circuit court of Butler county by virtue of the change of venue from New Madrid county became functus officio, and it, said Butler Circuit Court, possesses no jurisdiction over matters and causes concerning said district arising after the rendering of said decree. Art. 1, Ch. 41, R. S. 1909. (3) The act of respondent in appointing commissioners for Little River Drainage District, the act of such commissioners in viewing the lands therein and reporting to the Butler Circuit Court, were not ancillary steps to the action brought to incorporate the district; they were not steps designed to carry into effect said decree, nor were they acts designéd to effectuate or change the incorporation decree; therefore, they are not to be treated as a part of the original cause, but separate and distinct special statutory proceedings, and should have been instituted in New Madrid county. Cole v. Cole, 89 Mo. App. 228; Oglesby v. Antull, 12 Fed. 227. (4) After the change of venue it is true that the pleading may be amended, new parties may be brought in, a supplemental petition may be filed, and new summons may issue, but the subject matter of the action must remain the same or the court to which the cause has been removed will have no jurisdiction. Sec. 1933, R. S. 1909; Fears v. Riley, 148 Mo. 49. (5) It must be conceded that an action brought under Art. 1, Ch. 41, to incorporate a drainage district is a distinct “civil suit,” and from a decree rendered in such an action an appeal will lie, therefore, the judgment and decree rendered is final as to that action. So a decree and judgment confirming the report of commissioners under the provisions of Sec. 5518, R. S. 1909, is final. Under that section and by a decree of the courts benefits may be fixed, damages assessed and land and other property condemned for the purposes of the district. The effect of such decree is to impose special burdens upon individuals and corporations owning- property within the district, hence the right of appeal from a judgment and decree confirming- the report of commissioners exists under the general law whether given or not by Art. 1, Ch. 41. The appeal lies because burdens are • imposed upon the property of citizens. Appeals have been allowed from judgments of the circuit court in condemnation proceedings under the charter of St. Louis notwithstanding that there is no provision of the charter providing for the appeal. District v. Jamison, 176 Mo. 564; Railroad v. Lackland, 25 Mo. 515; Railroad v. Brick Co., 85 Mo. 323; St. Louis v. Thomas, 100 Mo. 223; Colville v. Judy, 73 Mo. 651; State ex rel. v. Riley, 203 Mo. 175; Drainage District v. Richardson, 139 S. W. 576. (6) In the action brought to incorporate Little River Drainage District the subject-matter was the organization of a public corporation within boundary lines' embracing the lands described, as well as the term of its corporate existence. The Butler Circuit Court therefore had jurisdiction of the. subject-matter and to grant the relief concerning same within the issues made. Fields v. Maloney, 78 Mo. 183; Hughes v. McDivvitt, 102 Mo. 78; Spurlock v. Railroad, 104 Mo. 658; R. E. Co. v. Lindell, 133 Mo. 386. (7) Upon the articles of association the court was not authorized to render any judgment or decree except such as was authorized by the facts stated in the articles and raised by the objections filed. St. Louis v. Contracting Co., 210 Mo. 491; Charles v. White, 214 Mo. 187; Roden v. Helm, 192 Mo. 71; Dawkins v. Griffin, 195 Mo. 430; Schneider v. Patton, 175 Mo. 684. (8) A judgment or decree which disposes of all the parties to the action, as well as all the issues made by the pleadings, is final. Baker v. St. Louis, 189 Mo. 375; Imp. Co. v. Marr, 168 Mo. 252. (9) Two final judgments cannot be rendered in the same cause. Warren v. Manwarring, 173 Mo. 21. (10) After a final judgment in a canse has been rendered no issue involved can be reserved for further adjudication. St. Louis v. Crow, 171 Mo. 272. (11) After the rendering of final judgment in a cause the parties are no longer in court. Smith v. Kander, 85 Mo. App. 33; Laun v. Ponath, 91 Mo. App. 271; State ex rel. v. Klein, 140 Mo. 502. (12) Special acts which authorize the taking of private property for public purposes must be strictly construed in favor of the property-owner. Bridge Co. v. Schaubacher, 49 Mo. 555; In re Bledsoe Hill, 200 Mo. 630; Tarkio v. Clark, 186 Mo. 285. (13) The circuit court of Butler county has no jurisdiction of the subject-matter, that is to say, the report of commissioners assessing damages and benefits, and taking and condemning lands for the purposes of the district; therefore it cannot be invested with jurisdiction by appearance or consent of parties. State ex rel. v. Nixon, 232 Mo. 496. (14) The Legislature, by Act 1, Ch. 41, E. S. 1909, in drainage matters arising under that article, has specially and expressly conferred jurisdiction on a certain designated circuit court located in the district. All circuit courts of the State are not invested with such jurisdiction. The jurisdiction is dependent upon the territorial location of the court, therefore, the principles announced in the following cases are applicable to the issue made by the preliminary writ. State ex rel. v. Nixon, 233 Mo. 345; State ex rel. v. Nixon, 232 Mo. 98; State ex rel. v. Nixon, 232 Mo. 496; Dennis v. Bailey, 104 Mo. App. 638; Dodson v. Scroggs, 47 Mo. 287; Smith v. Simpson, 80 Mo. 634; Tippack v. Briant, 63 Mo. 580. (15) Estoppel cannot be invoked in this case against relator. The fact that relator did not, prior to filing its exceptions in January, 1911, take legal steps to question the jurisdiction of the Butler Circuit Court, does not prevent it at this time from maintaining that said circuit court is acting without having jurisdiction of the subject-matter. McCormick v. Moore, 134 Mo. App. 680; Rosecranz v. Swafford, 175 Mo. 520; Verdin v. St. Lonis, 131 Mo. 98; Keane v. Klausman, 21 Mo. App. 485; Perkinson v. Hoolan, 182 Mo. 189; Henderson v. Koenig, 192 Mo. 690; 2 Pomeroy’s Eq. Jur. (3 Ed.), Sec. 804.

      Oliver & Oliver for respondent.
    (1) In the late case of Sibbett v. Steele, this court has held that the paper “called by the statute ‘articles of association’ is in effect the first pleading” in a case of this kind, and that it takes the place and performs the functions of a “petition.” The signers of the paper are the “plaintiffs” and those land owners who refuse to join in the formation of the drainage district are “defendants.” This construction of the statute is in harmony with the former holding of this court, to the effect that the proceedings for the formation and establishment of a drainage district under this article is a “civil suit.” Sibbett v. Steele, 144 S. W. 441. (2) This court has declared that the petition or articles of association for the formation of a drainage district under Art. 3, Ch. 122, R. S. 1899 (Art. 1, Ch. 41, R. S. 1909), is a “civil suit” within the meaning of Sec. 818, R. S. 1899 (Sec. 1927, R. S. 1909). It follows as a legal corollary that a change of venue, in a proceeding for the formation of a drainage district, carries with it the same jurisdiction and power that would go in any other “civil suit,” where a change of venue is had. Secs. 1927,1935, 1940, R. S. 1909; State ex rel. v. Riley, 203 Mo. 175. (3) The statute authorizing changes of venue in “civil suits” provides that the transcript of the record shall' be filed by the clerk of the court to which the cause is removed, and that said cause shall “be docketed, proceeded in, and determined as if it originated” in said court. Secs. 1927 and 1935> R. S. 1909. (4) The statute further provides that “the court to which any cause shall he transferred by change of venne shall have jurisdiction to hear and to determine the same, and shall proceed to final judgment and execution therein; although such cause would not otherwise he cognizable in such court.” Sec. 831, R. S. 1899; Sec. 1940; R. S. 1909; Ex parte Haley, 99 Mo. 150; Fears v. Riley, 148 Mo. 49; McIlwrath v. Hollander, 73 Mo. 114. (5) The uniform construction placed upon the above sections of our statute concerning changes of venue clearly demonstrates that when the order of the circuit court of New Madrid county was made, changing the venue of the proceedings for the formation and establishment of the Little River Drainage District from that county to the circuit court of Butler county, the order of removal carried with it to the circuit court of Butler county the whole case, and every incident belonging to it — just as if it had originated in the Butler Circuit Court. There was not a shred or patch of jurisdiction over the cause, or any of its incidents left in New Madrid Circuit Court. District v. Richardson, 237 Mo. 65; Ex parte Haley, 99 Mo. 152; Fears v. Riley, 148 Mo. 49; McIlwrath v. Hollander, 73 Mo. 114. (6) The above statutes and the construction placed upon them by this court are based upon sound reason, convenience to the parties interested, and the welfare of the public. They are in keeping with a proper regard for the dignity and authority of the court that is required to take over the jurisdiction of the controversy, and to enforce and carry out its judgment and decree. It is a maxim of our law that a court possessing the power and jurisdiction to hear and determine a cause — to enter up orders, judgments and decrees — has, of necessity, an implied power (if not expressly conferred) to carry out and enforce its own orders, judgments and decrees. To hold otherwise would cripple and destroy the purpose for which all courts were organized. State ex rel. v. Rombauer, 104 Mo. 632; Broom’s Legal Maxims (8 Ed.), side pages 476, 486; 2 Ency. Pl. & Pr. 1082: Deaderick v. Smith, 6 Hump. (Tenn.) 138; State v. Ryno, 49 N. J. L. 603; Mellier v. Bartlett, 89 Mo. 134; Gilbert v. Renner, 95 Mo. 151. (7) The very fact that a drainage district might be formed under Art. 3, Ch. 122, R. S. 1899 (Art. 1, Ch. 41, R. S. 1909) with lands situated in different counties, and in different judicial circuits, induced the Legislature to settle the question as to which of the different circuit courts should have and retain jurisdiction for the purpose of forming and organizing a drainage district. The Legislature, therefore, directed that the circuit court of the county having the greatest acreage of lands in the district should have jurisdiction over the entire subject-matter of the proceedings, coextensive with the boundaries of the district, without regard to county lines, for all the purposes of the article under which the district was organized. The purpose of the Legislature was to avoid confusion and conflicts between circuit .courts of the same judicial circuit, and to avoid conflicts between the different judicial circuits. Moreover, its purpose was to keep all the orders, judgments, decrees, records and proceedings relating to this public corporation — this agency of the State — at one place and in one court, without regard to county lines, for all the purposes for which the corporation was organized. Sec. 5597, R. S. 1909; District v. Richardson, 237 Mo. 68. (8) New Madrid county having a greater acreage of the lands described in the Little River Drainage District than did any other county, the petition or articles of association for the incorporation and establishment of the district were originally filed in the circuit court of that county. The venue in the cause was thereafter regularly changed by the order and judgment of the circuit court of New Madrid county (with the sanction and approval of this court) to the circuit court' of Butler county. The latter court therefore became possessed of all the jurisdiction that the former court possessed, just as if the proceedings had first originated in that county. Sec. 1927, 1935, 1940, R. S. 1909; District v. Richardson, 237 Mo. 65; Railroad v. District, 237 Mo. 98; Ex parte Haley, 99 Mo. 152; McIlwrath v. Hollander, 73 Mo. 114; Fears v. Riley, 148 Mo. 49.
   GRAVES, J.

— -This is an original proceeding instituted in this court hy relator, seeking to prohibit the respondent,.as judge of the circuit court of Butler county, from trying exceptions to the commissioners'’ report filed by land owners in the case of the Little -River Drainage District, assessing benefits and damages thereto by reason of the improvements to be made thereon.

We are by this -proceeding called upon to reconsider the right of a property owner, in a proceeding to incorporate and establish a drainage district,. to take a change of venue from the circuit court of the county where the proceeding was instituted, to the circuit court of some other county in the State; as well as to declare to what extent the change, when granted, carries the cause to the court to which the cause is sent.

In order to understand the question presented for determination, it will be necessary for us to briefly state the history of the Little River Drainage District.

In. 1905 some five hundred land owners of Cape Girardeau, Scott, Stoddard, New Madrid, Dunklin and Pemiscot counties filed in the circuit court of New Madrid county a petition praying for the incorporation and establishment of the Little River Drainage District, under Art. 3, Ch. 122, R. S. 1899, and amendments thereof, to embrace something over five hundred thousand acres of swamp and overflowed-lands, for the purpose of having said lands drained and protected from water and overflows.

All parties interested either signed the petition ashing for the incorporation, entered their appearance in the cause, or were duly served with process as required by law.

Five railroads cross or pass over the territory sought to be drained and reclaimed, among which was the relator.

Relator and two other railroads, and sixty odd individual land owners, filed objections to the formation and organization of the district as authorized by Sec. ■5499, R. S. 1909.

Louis Houck and wife were among the objectors and subsequently they filed an application for a change ■of venue of said cause from the circuit court of New Madrid county, because of the prejudice of the judge thereof, etc.

The petitioners for the incorporation and estab■lishment of the district resisted the application for the change of venue, and sought by an original proceeding in this court to prohibit-the judge of said court from granting said change. We denied the writ (State ex rel. v. Riley, 203 Mo. 175), and the court granted the change of venue, and sent the cause to the circuit court of Butler county.

After the cause reached Butler county the clerk of said court docketed said cause for the October term, 1907, thereof, since when said cause has been proceeded with in every respect as if it had originated therein, as provided for by Sec. 1935, R. S. 1909, which was then in force.

At said October term of said court the objections of the relator, as well as all the other objections filed, were, by the court, taken up and heard. Part of the relator’s objections were overruled and part of them were sustained. The relator duly excepted to the action of the court in overruling its objections.

On November 30, 1907, during said term, said court entered its judgment and decree in said cause, incorporating tbe territory described in tbe petition into a public corporation, as provided for by said chapter under tbe name of tbe “Little River Drainage District.” It was also further ordered, adjudged and ■decreed by tbe circuit court of Butler county:

‘ ‘ That tbe clerk of this court shall, within twenty days from tbe date of rendering this decree, prepare and transmit a certified copy of the record and decree, relating to tbe incorporation of tbe said Little River Drainage District, duly attested, to tbe Secretary of State of tbe State of Missouri; and that be shall file tbe same in bis office in tbe same manner as articles of incorporation are now required to be filed under tbe general law concerning corporations, and that a copy of said record and decree, together with a plat of tbe district, shall also be filed in each of tbe offices of tbe clerks of tbe county courts of Cape Girardeau, Bollinger, Scott, Stoddard, New Madrid, Dunklin and Pemiscot counties, all in tbe State of Missouri.
“It is further ordered, adjudged and decreed that tbe clerk of this court shall, within thirty days from tbe rendering of this decree and incorporation of tbe Little River Drainage District, call a meeting, upon fifteen days’ notice, by publication, in a newspaper as provided by law, of tbe owners of real estate situated, embraced and included in said drainage district, as provided by law, in some public place in such district, for tbe purpose of electing a board of five supervisors, to be composed of owners of real*estate embraced and included in said district and residents of tbe counties in which such district is situated.”

Prom that judgment, tbe respondent here appealed to this court, which was by this court, in Banc, affirmed. Thereupon tbe circuit court of Butler county ordered tbe clerk of said court to bold an election .for the purpose of electing a board of five supervisors, to represent and manage said district in carrying out the purposes of the decree, and in prosecuting the work for the reclamation of the lands embraced in the district. In accordance with said order of the court, the clerk duly called the land owners of said district together at Morehouse, on the 30th day :of December, 1907, for the purpose of electing said ..supervisors. At that meeting the land owners thus-called, duly elected John H. Himmelberger, A. H. Matthews, Charles W. Henderson, Alfred L. Harty and S. P. Reynolds, as such supervisors of said district. After duly organizing, said board of supervisors appointed a board of engineers and directed them to-make a topographical survey of the lands located within the district, together with maps and profiles, and '■a plan for draining and reclaiming said lands, as provided for by Sec. 5511, R. S. 1909.

This board of engineers, after a year’s labor, and at a cost of many thousands of dollars, surveyed and platted said lands and made a report to the- board of supervisors, and submitted with it a plan for draining the lands situated in said district.

The board of supervisors, after consulting with its board of engineers, and with some of the most eminent consulting engineers of the country, did, on November 15, 1909, approve and adopt the plan so submitted to it, and caused the same to be recorded by the secretary of said board of supervisors, and designated it as the “Plan for Drainage,” for said district, as provided for by Sec. 5512, R. S. 1909.

The board of supervisors, within twenty days after the adoption of said “Plan for Drainage,” viz.,. December 3, 1909, caused its secretary to file a certified copy of said “Plan for Drainage” with the clerk of the circuit court of Butler county, as provided for by Sec. 5514, R. S. 1909.

On the last-named date said board of supervisors, filed with the clerk of said court, a petition asking the judge thereof to appoint three commissioners to view the lands and property in said district and assess the benefits and damages that would inure to the same in consequence of said improvements, as provided for by Sec. 5514, R. S.. 1909. Within thirty days after filing said petition, to-wit, December 23, 1909, the respondent herein, as judge of said court, in vacation, took up said petition, and after due consideration appointed William C. Cracraft, M. O. Reed and Luther Conrad commissioners to assess said benefits and ■damages to said property within said district in consequence of said improvements, as provided for by Secs. 5514 and 5516, R. S. 1909. The order appointing said commissioners was duly filed in the office of the clerk of said court, and said clerk duly notified said commissioners of their appointment as such, and requested them to meet at the office of the secretary of the Little River Drainage District on January the 7th, 1910, for the purpose of qualifying and organizing as provided for by statute. In pursuance to said notice, said commissioners met at the time and places designated, qualified and organized as required by law, and elected William C. Cracraft chairman. The commissioners then entered upon the discharge of their duties and proceeded to inspect and examine the lands and other property located within the district, as provided for by said chapter.

In the discharge of their duties the commission■ers were accompanied by the secretary of the board of supervisors and by the chief engineer or one of his assistants, during the entire time they were performing their duties. They devoted about eleven months to this work at a cost to the district of about $75,000. While the commissioners were examining and inspecting the property of the relator, they were accompanied by the engineers and other of its representatives who-went with them over its entire property. .

On December 30, 1910, the commissioners finished their labors and filed their report with the clerk of the circuit court of Butler county; that court having” organized the district as provided for by Sec. 5516,. R. S, 1909.

Upon the filing of said report, the clerk of said court gave notice of that fact, by causing a publication to be made once a week for three consecutive weeks in a newspaper published in each of the counties having land within said district, as provided by Sec. 5517, R. S. 1909. Within ten days thereafter, the time allowed by statute for that purpose, two hundred and fifty land owners and the said railroads, including the relator, filed exceptions to the report of the commissioners.

Said exceptions were docketed and set down for trial at the April term, 1911, of said court. At that time the relator and other exceptors appeared in court and requested that the hearing and trial of the exceptions be postponed to the succeeding term, for the reason suggested, that there was then pending in the Supreme Court an appeal from the judgment of the circuit court of Holt county, in the case of the Little Tarkio Drainage District No. 1 v. Richardson et al., 237 Mo. 49, involving a further consideration of the-change of venue statute in relation to the formation of drainage districts.

Thereupon the respondent in this cause announced from the bench that the question of the change of venue in that cause had been settled by the Supreme-Court in the case of State ex rel. v. Riley, supra, and that in his opinion the circuit court of Butler county was the only court that had the power or authority to appoint commissioners and to hear and determine exceptions to the report thereof, but nevertheless ordered that all exceptions to the report be continued until the next term, awaiting the decision of this court in the case of the Little Tarkio Drainage District No. 1 v. Richardson.

Said exceptions were again set for héaring at the October term, 1911, of the circuit court of Butler county, and between the 3d day of November, 1911, and the 9th day of February, 1912, said court had heard and disposed of all the exceptions that had been filed to the commissioners’ report, with the exception of some six or eight parties, including the relator' herein. Some of those exceptions were tried by juries and the others by the court; all of which cost many thousands of dollars.

The owners of the land situated in said district have annually met ever, since 1907, and elected one of their number a supervisor for said district, as provided for by statute. The hoard of supervisors thus elected has performed all the duties and obligations imposed upon it by said chapter, and the amendments thereto, and has contracted and expended in behalf of the district for all purposes authorized by law a sum in excess of $100,000 at the time of the service of the writ of prohibition upon the respondent.

Respondent says that the district, through its hoard of supervisors, has made contracts and has expended said money and caused all of said work to he done in behalf of said district, “relying upon the: judgment and mandate of this court in holding in the case of State ex rel. v. Riley, supra, that the formation and establishment of a drainage district under Art. 3 of Ch. 122, R. S. 1899, was a civil suit, and as» such was governed by the law relative to changes of,' venue; and that the circuit court of Butler county he- • came possessed of the same jurisdiction and power in> all respects, after the venue had been changed to it,' that the statute had originally conferred upon the cir-' cuit. court of New Madrid county.

We have gathered these facts partly from the petition for the writ, and partly from the return of the respondent filed herein, and the remainder from the recital of- the facts of the case as they appear from the various opinions that have been written by this ■court in the cause.

The writ of prohibition in the present case was issued at the request of the relator, in order that the hearing of the exceptions filed to the report of the commissioners might be postponed until this court could pass upon the question of the change of venue presented by the appeal in the case of Little River Drainage District, J. H. Himmelberger et al., appellants, v. T. E. Tomlinson et al., respondents, just decided by this court, in Banc, qnd reported at page 1 ■of this report.

After a careful consideration of this case, we are ■still of the opinion that a land owner in a proceeding to incorporate and establish a drainage district, is entitled to a change of venue therein, the same as he would be in any other civil suit.

After a careful consideration of the question and •a most exhaustive review of the authorities, the Court in Banc, in a unanimous opinion, held in the case of State ex rel. v. Riley, supra, that a change of venue would lie in this character of cases, and we see no reason for changing our views upon that question.

. We also held in the case of Little Tarkio Drainage District No. 1 v. Richardson, supra, and Little River Drainage District, J. H. Himmelberger et al. v. T. E. Tomlinson et al., supra, that the granting of a change of venue in a case of this character ■carried the entire cause to the court to which the •change had been granted, and left no vestige of it in the court from which the change had been taken,’ and that the latter had no jurisdiction or authority to proceed further in the case. We still adhere to that view of the law.

We are, therefore, of the opinion that- the peremptory writ of prohibition should be denied, and that the preliminary rule heretofore issued should be quashed. It is so ordered.

All concur except Valliant, G. J., absent.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE ex rel. MILO E. HARTMAN v. W. O. THOMAS, Judge.
    In Banc,
    July 2, 1912.
    X APPEAL: From Order Granting New Trial: Bill of Exceptions: Confined to One Matter Ruled. An appellant who appeals from an order granting to defendant a new trial is required to include in his bill of exceptions so much of the record as will enable the appellate court to determine whether the action of the trial court can be sustained upon any of the grounds of the motion for a new trial. He does not have the right to have approved a bill which sets forth only that part of the record that relates to the ground or grounds of the motion upon which the court based its grant of a new trial. The appellate court is not warranted in directing a verdict reinstated and a final judgment entered, when only one of the many grounds of the motion for a new trial is before it.
    -2. -: -: -: -: Who Should Prepare Bill. The appellate court will not reverse the order of the trial court granting a new trial if that order can be sustained upon any ground of the motion. But no litigant can appeal from a judgment in his favor, and only the party who excepts to a ruling of the court can file his exceptions thereto; it therefore logically follows that the appellant alone can bring before the appellate court whatever record is necessary to decide whether the court’s ruling in granting a new trial shall stand.
    ■'3. -: -: -: -: Submitted to Respondent for Approval. The law does not require an appellant to submit his bill of exceptions to the respondent for approval before presenting it to the court for allowance; that practice is adopted in order to save the court the labor of an examination as to the correctness. of the bill. Nor is a respondent required to say what additional part of the record he desires to have added to the bill in order that he may assail the action of the court ■on appeal; nor is he required to bring before the higher court matters of record as to rulings to which he was no.t required to except.

      4. -: -: Reasons For To Be Stated. The statute requiring the court to state its reasons for granting a new trial was an amendment to the statute which denied'more than one-new trial to the same party except in case the jury erred as to the law or was guilty of misbehavior, and its purpose was to preserve for use, in case a second new trial was applied for, record evidence of the ground upon which the new trial was granted. This amendment was enacted four years before the enactment -of the statute allowing an appeal from an order granting a new trial.
    Mandamus.
    "Writ denied.

      W. F. Guthrie for relator.
    (1) The sole question presented by the record is as to whether a defeated party may present in a short bill of exceptions the propriety of the ruling upon which he is defeated, or whether he must prepare a record covering everything that occurred in the trial court in order to enable the reviewing court to say whether the trial court was not perhaps right for some other reason. There is no question of greater general importance pending before this court — the question of encouragement or discouragement of the voluminous bills of exceptions prepared at an expense often prohibitive and always to be deplored, through which this court is required to laboriously wade in case' after case. There is no reported decision anywhere declaring that it is the duty of one seeking review to' so-encumber the record. It is a practice due to the laziness of lawyers and the modem stenographic system. It is contrary to the well-settled understanding of the courts everywhere. State ex rel. v. Jarrott, 183 Mo. 216; State ex rel. v. Gibson, 184 Mo. 502. This has been understood to be the rule in this State from an early date. Resort v. Brooke, 10 Mo. 533; Wallace v. Boston, 10 Mo. 663; Walls v. Gates, 4 Mo. App. 6; 2 Cyc. 1085. “Only so much of the evidence, however, as is needed to show the questions raised by appellant or plaintiff in error should he incorporated in the bill of exceptions, case, or statement of facts.” On the contrary, the courts have frequently severely criticised the process of loading them down with extensive records when the question could be briefly presented. Lincoln v. Claflin, 7 Wall. 136; Lewis v. United States, 146 U. S. 370. They even go to the extent of taxing against a successful appellant the expense of unnecessary and superfluous parts of the record. Ferry Co. v. Railroad, 5 Mo. App. 347; Stark v. Hill, 31 Mo. App. 108. The only excuse of the trial g'udge for insisting upon our making a record of several hundred pages to present one question is to enable the reviewing court to apply the rule that where the entire record shows that the result below was right, the action of the court would be sustained, even if this action were based upon a wrong theory. But this is a rule which prevails in every court of every jurisdiction, as well as in'Missouri, and it never seems to have been suggested before as a reason why the party desiring review should be compelled to present everything that occurred in the trial court in order that a possible claim of this kind in favor of his adversary might be presented. Such a theory would absolutely destroy the idea of brief bills of exceptions. It would be prohibitive of many just appeals. It would have been a practically impossible burden in most cases prior to the day of stenographers. And the law has not been changed since that time. Such a theory would nullify the statute providing for the assignment of the reasons for granting a new trial. The only possible purpose of such statute is to advise the complaining party in the reviewing court of the action of the court below in such manner that the review might be directed to the question actually decided. All must concede the propriety of affirming an order of a lower court which was right in fact, no matter what the reason for it was, if the record presents a proper case for such action. But this is no reason why a party seeking review and complaining of a ruling which can be succinctly and briefly presented, should be compelled to prepare an enormous and expensive record upon the theory that perhaps somewhere in the mass so presented, may be disclosed a justification for sustaining the result in spite of the ruling complained of. It is equally a familiar rule that every presumption is indulged in favor of the action of trial courts. They are presumed to have been right in all that they did until the contrary affirmatively appears. "Why should a record be amplified upon a contrary presumption that such amplification may disclose an error? The statute itself contemplated a review of motions for a new trial upon limited grounds. There ought to be no earthly reason for requiring a trial judge to specify the grounds of his action in sustaining a motion for a new tried except to enable an attack upon his action to be directed to the very grounds thereof, and to ■exclude any possible presumption that the ruling was based on some other ground. (2) If the defendant 'in this case believes there was any error in the proceedings of the court below which would have offset the error in ruling upon the motion for a new trial upon the ground complained of, then it was the duty of the defendant to have pointed out to the court below such proceeding as would have offset the action of the court complained of and asked to have had that incorporated in the bill of exceptions. The trial court would have undoubtedly recognized any reasonable request of this kind. The defendant below could not ■simply rear back and say: “I think there is error .somewhere in the record; I do not know just where; but I want the whole record brought up so that it may be searched for later.” Nor was the defendant without remedy. Any party desiring to have any action of the court preserved upon the record can prepare a bill of exceptions. The defendant could have prepared and had allowed any true hill he desired in this case. The statute authorizes it. The practice of counter-hills of exceptions on behalf of the successful party has been approved. Stoeckman v. Railroad, 15 Mo. App. 503. (3)' All question of the propriety of such practice was taken out of this case by our offer to the trial court, repeated in our alternative writ, to consent to the allowance of any true bill of exceptions which the defendant might desire to have made of record, either as an independent bill or by adding the matter to our bill of exceptions. It was the duty of the trial judge to find out for himself what the evidence at the trial was, and make the bill of exceptions speak the truth in any matter in which it did not. Sec. 2030, R. S. 1909; Morse v. Kimball, 155 Mo. 579.
   KENNISH, J.

— This is an original proceeding by mandamus. Respondent made return to the alternative writ of this court, and relator moved for judgment. No question is presented as to the sufficiency of the pleadings, and the facts are not controverted.

It appears from the record that at the April te.rm, 1910, of the circuit court of Jackson county, in an action there pending in which relator was plaintiff and E. L. Morse was defendant, a verdict was returned in favor of relator in the sum of $1001. The defendant in due time filed a motion for a new trial containing thirteen separate grounds, one of which was “because the court erred in refusing to admit proper, legal and competent evidence offered by defendant.” After argument the motion was taken under advisement by the court and the case continued to the October term, 1910, at which term the motion was sustained and a new trial granted, upon the ground, as specified of record, “for the failure to make proper rulings as to the admissibility of the evidence of Ora B. Hartman.”Ora B. Hartman was a witness for the defendant. Relator excepted to the ruling of the court and at the-same term filed a motion to set aside and vacate the order granting the new trial, upon the several grounds therein set out. The motion to vacate was taken under advisement by the court and the cause continued to the January term, 1911, at which time the motion to vacate was overruled and relator excepted. Thereupon, and at the said January term, 1911, relator filed an application praying an appeal “from the order of the court overruling plaintiff’s motion to vacate and set aside the order granting a new trial.” An appeal was allowed.to the Kansas City Court of Appeals, and at the same term relator presented to the court for allowance his bill of exceptions, in which was truly stated all of the proceedings at the trial bearing upon the testimony of Ora B. Hartman and upon which the court based its order granting a new trial. It is alleged in the alternative writ that: “Previous to the presentation of said bill of exceptions, the plaintiff notified the defendant that same would be presented and allowance and entry of same of record asked, accompanying such notice with a copy of the proposed bill, of exceptions, and in such notice notifying defendant that he would ‘ consent to the allowance to the defendant at that time, or at such future time as the court may fix for the consideration thereof, any additional bill of exceptions which the defendant may desire to have allowed and which may be true in fact.’ Pursuant to such notice said plaintiff and defendant appeared before said court at the November, 1911, term thereof, and said defendant objected to the allowance and entry of said bill of exceptions on the ground that he was entitled to have the proceedings fully set forth in order that the appellate court might determine whether the order granting a new trial should be sustained for some reason not given by the court, even if not sustained on the ground given by the -court in sustaining the same, but defendant did not suggest to the court in any manner the lack of verity of the bill of exceptions as presented as far as the facts therein recited were concerned, and did not ask that any particular matter or thing should be inserted in or added to said bill of exceptions in order to make same a correct and true bill of exceptions.”

At the January term of said court, 1912, the court refused to allow an'd sign the bill of exceptions presented by appellant, and indorsed his grounds of refusal on the back thereof as follows: “As judge of said court who tried said cause, I refuse to allow the within bill of exceptions, not because the recitations therein are not true as far as the proceedings are recited, but because the defendant objects on the ground that he is entitled to have the proceedings fully set forth in order that the appellate court may determine whether the order granting a new trial should not be sustained for some reason not given by the court, - even if not sustained on the ground given by the court. in sustaining the same.”

It is further alleged in the alternative writ that at the time of the foregoing refusal of the court the attorney for the defendant was present, but did not ask leave to insert other recitations in said bill or to file any additional bill of exceptions on behalf of defendant; that relator is willing and consents that defendant may, at defendant’s expense, insert in said bill any additional recitations,, true in fact, or prepare and have allowed any additional bill of exceptions, true in fact, and that “said bill of exceptions so presented was true as to each and every matter and thing therein contained and set forth.”

The facts alleged in the pleadings sufficiently appear in the foregoing statement, for the purpose of this decision.

It is a principle of the law of mandamus that the relator must have a clear right to the performance of the act sought to be coerced by the mandate of the court. Under this rule a number of questions might be raised upon this record as to the right of the relator to have the purported bill of exceptions signed and allowed by respondent at the time the same was presented for that purpose. There is also the question as to the authority of a court to refuse to sign and allow any bill of exceptions, provided the same is true so far as it goes. Howevet, we shall consider only the one broad issue which the parties seem to have agreed shall be determinative of the case. That question is: Is an appellant, in an appeal from an order granting a new trial, required to include in his bill of exceptions so much of the record as will enable the appellate court to determine whether the action of the trial court can be sustained upon any of the grounds of the motion for a new trial, or only such part of the record as relates to the ground or grounds of the motion upon which the court based its ruling?

That the question presented is of great importance is well illustrated by this case. The portion of the record necessary to the review of the court’s action as to the sole ground upon which the new trial was granted could be limited to a few pages, while that covering the entire thirteen grounds would amount to a large volume. The expense to an appellant and the labor involved in the investigation af the case on appeal would bear about the same relation according as the one rule or the other obtains.

Until the year 1891 an appeal from an order, granting a new trial was not allowed in this State. In that year the statute governing appeals was amended (Laws 1891, p. 70) so that an appeal was also authorized “from any order granting a new trial,’’ and so the law has remained until the present time.

Although many cases have been decided in our appellate courts involving a' construction of the Act of 1891, there has been no direct pronouncement upon the issue now in judgment. Some questions arising' under that act and indirectly bearing upon the mat-' ter before us have been passed upon by the appellate • courts and may be considered as settled. It is settled that, the appellate court will not reverse the order and judgment of the trial court granting a new trial if it can be sustained upon any ground of the motion, even though not sustainable upon the ground speci.fied of record. [Chandler v. Gloyd, 217 Mo. 394; Emmons v. Quade, 176 Mo. 22; Bradley v. Reppell, 133 Mo. 560; Hewitt v. Steele, 118 Mo. 463.] And if' the trial court fail to specify the ground upon which the new trial is granted, as required by section 2023, Revised Statutes 1909, the judgment will be affirmed unless the appellant can satisfy the court that the new trial should not have been granted upon any ground contained in the motion. [Stoner v. Royar, 200 Mo. 1. c. 451; Pierce v. Lee, 197 Mo. 480; Roe v. Bank of Versailles, 167 Mo. 406.] When the record discloses .the ground or grounds upon which the court granted the new trial, then, as a matter of course and as all of ■the cases hold, the appellant carries the burden of showing error .as to the ruling upon such ground or grounds. [Stoner v. Royar, supra; Ittner v. Hughes, 133 Mo. 1. c. 688.]

In the case before us the court did state the ground of its ruling, and the question is presented: Does the appellant carry the burden of showing by' the record ■that the court’s action was erroneous and cannot be ■upheld upon any one of the remaining twelve grounds, as well as upon the one specified, or must the respondent bear the burden of making it appear that the court’s action was, right and can be sustained upon ■some one of the other twelve grounds, though not upon the ground stated, and for that purpose have the burden of bringing up so much of the record as will enable him to maintain that contention?

It has been held in several cases that the appellant assumes the burden of showing error only as to the ground upon which the court acted, and as to. the other grounds of the motion the presumption will be indulged that the court’s ruling was right, until the respondent shows the contrary. [Bradley v. Reppell, 133 Mo. 545; Ittner v. Hughes, 133' Mo. 679.] It has also been held that in maintaining that the court’s ruling should be sustained upon some other .ground of the motion than that upon which the new trial was granted it is not necessary that respondent should have excepted to or appealed from the adverse ruling of the court upon such other ground. [Bradley v. Reppell, supra; Ittner v. Hughes, supra.] In Ittner v. Hughes, 1. c. 688, this court said: “To obtain the benfit of such a view of the record, on an appeal, it is not necessary for the party who obtained the order for new trial, to except to, or appeal from, the order. What need of an exception on his part when he has obtained what he demanded? If his adversary seeks to have the order reviewed, the successful party to the order should, however, see to it that the final record discloses the matters on which he relies to sustain the result of the circuit ruling.” And in the case of Bradley v. Reppell, supra, 1. c. 560, this court discussed the same subject as follows: “The court may have erred in overruling the motion as to some of these other grounds; but the presumption is that the court acted correctly in so ruling, and the burden of showing that it committed error devolved upon the respondents against whom such adversary ruling was made, and if they would have this court review that action they must point out some other ground in the motion upon which it ought to have been sustained. In order to do so it was necessary that the motion for a new trial containing such grounds and the action of the court upon which it was based should have been made a part of the bill of exceptions, and thus appear in the record for review.” In the foregoing excerpts the necessity of having sufficient of the record before the appellate court to enable it to review, not only the ground upon which the order was based, but all of the others, is recognized. How that record is to be preserved and brought before this court and by whom, does not clearly appear; but in view of the fact that a litigant cannot appeal from a judgment in his favor and as only the party who excepts to a ruling of the court can file his exceptions thereto, it logically follows that the appellant alone can bring before the appellate court whatever record is necessary to decide whether the court’s ruling in granting the new trial shall stand. While it is the practice for an appellant to submit his bill of exceptions to the respondent for approval before presenting it to the court for allowance, that practice is adopted in order to save the court the labor of an examination as to the correctness of the bill. We know of no statute or principle of law which requires an appellant to so submit his exceptions to a respondent, before signing and allowance by the court, nor by which a respondent can be required to say what additional part of the record, if any, he desires to have added in order that he may assail the action of the court on appeal. It is at variance with the principles of appellate procedure to require a respondent to bring before the higher court matters of record as to rulings which he was not required to except to nor appeal from. It is provided by the statute (Sec. 2081, R. S. 1909) that: “No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.”

The decision excepted to and appealed from is the order granting a new trial, and it is the correctness of that ruling and not the reason for it that the appellate court is called upon to review. [14 Ency. PI. & Pr. 975.] Appellant contends that the theory that the appellant should take up the record as to all of the grounds of the motion for a new' trial “would nullify the statute providing for the as-' signment of the reason for granting a new trial,” and that: ‘ ‘ The only possible purpose of such a statute is to advise the complaining party in the reviewing court of the action of the court below in such manner that the review might be directed to the question actually decided.” .This contention loses its force when we consider the fact that the statute requiring the court to state its reasons for granting a new trial was enacted in the year 1887, while the act allowing an appeal from an order granting a new trial did not become the law until 1891. The former act was not intended to affect appellate procedure, but rather was in aid of the statute to which it was an amendment and which denied more than one new trial to the same party except in case the jury erred as to the law or was guilty of misbehavior. The record evidence of the ground of the new trial was thus preserved for use in case a second new trial should be applied for. [Smith v. Sedalia, 152 Mo. 1. c. 296.]

Many cases are cited by appellant in support of the rule restricting the record on appeal to such matters as are involved in the questions up for decision. However, the question for decision in this case is not whether the order appealed from was right for the reason, stated by the court, but whether it was right upon any of the grounds upon which the new trial was asked. It will not do to say that the only issue upon appeal, so far as appellant is concerned, is the order of the court, limited to the reason given for its action. If the court sustains the appellant, the effect of the decision extends far beyond that issue. The order- appealed from sets aside the verdict and vacates the judgment. The effect of sustaining appellant’s contention and reversing the trial court is to reinstate the verdict and judgment. Sec. 2082, R. S. 1909, forbids that we reverse the judgment unless we believe error was committed “against the appellant . . . and materially affecting the merits of-the action.” Under that rule would this court be warranted in directing a verdict reinstated and final judgment entered, when only one- ground of the motion for a nqw trial was before it? We think not. There is a difference in this respect between an appeal from a final judgment and from an order granting a new trial. In the former if prejudicial error appears the judgment cannot stand, regardless of the record as to other alleged errors, while in the latter the appeal is from one ruling to which there is but one exception, and if that ruling is right upon any one of the grounds upon which it was asked, it should not be reversed. Illustrations of the justice of this rule readily suggest themselves. For instance, assume that a will be contested upon two grounds and that upon a trial the court by separate instructions directs a verdict sustaining the will; that in the motion, for a new trial plaintiff challenged the court’s action on each instruction as error, in separate grounds; that the motion should be sustained, the court giving as the reason for its action one ground only. In such case the plaintiff has secured all he asked for — a new trial — and could not except to or- appeal from such: ruling. Would this court, upon an examination of the record as to that one ground, hold that the order for a new trial was error and that the verdict and judgment should be reinstated, in the absence of the record as to the other ground? Manifestly the court in such case could not so rule without ignoring the statute. An interesting discussion by Lamm, J., indirectly bearing upon such a case, will be found in the case of Turner v. Anderson, 236 Mo. 523.

The appellant not only appeals as to one ground of the motion for a new trial, but in effect asks the court to direct an affirmance of the judgment in his favor, and he should be required to bring before the court so much of the record as will enable the court to decide that the respondent was not entitled to a new trial upon any ground assigned, before directing final judgment against,Mm. This rule may entail a hardsMp in many cases, and doubtless does in the case at bar, but we must declare the lawo as we find it.

For tbe reasons given the alternative writ should be quashed and the peremptory writ denied. It is so ordered.

All concur.


author: "WOODSON, J.

text:
    THE STATE ex rel. HARTFORD LIFE INSURANCE COMPANY v. HOPKINS B. SHAIN, Judge, and PETER COURTNEY.
    In Banc,
    July 2, 1912.
    JURISDICTION: Visltorial Powers: Foreign Insurance Company: Assessment of Illegal Rates. The courts of this State have no jurisdiction to enjoin a foreign insurance corporation domiciled in another State from assessing one of its policy holders a rate of assessment in excess of the stipulated rate' according to age set out in the contract of insurance, and to order an accounting of such foreign corporation’s business affairs for the purpose of determining therefrom whether or not said policy holder has been and is being charged excessive and illegal premiums. To do that it would be necessary for the court in this State to investigate, overhaul and control the management of the internal affairs of a foreign corporation, and no court has jurisdiction to do that except the courts of the company’s domicile. Even if the court should render judgment in that behalf, it has no power to enforce it, since the officers of the company refusing to obey it are beyond the reach of its process; and a court never does an idle thing.
    Probibition.
    Writ allowed.

      Jones, Jones, Mocker & Davis and Montgomery & Montgomery for relator.
    (1) Tbe courts of one State will not exercise visitorial power over tbe internal affairs of a foreign corporation; and they will refuse to grant relief in cases where they cannot compel tbe performance of their decrees. State ex rel. v. Denton, 229 Mo. 187; Clark v. Association, 43 L. R. A. 390; Taylor v. Association, 97 Va. 60; Howard v. Association, 125 N. C. 49; Condon v. Mut. Res. Assn., 89 Md. 99; 19 Cyc. 1236-8; Sideway v. Missouri Co., 101 Fed. 481; 13 Am. & Eng. Ency. Law 849; Fraternal Union v. Lundy, 113 S. W. 185; 14 Cyc. 308. (2) Prohibition is the proper remedy under the circumstances disclosed by the record. State ex rel. v. Denton, 229 Mo. 187; State ex rel. v. Reynolds, 209 Mo. 177; Appo v. People, 20 N. Y. 531; State ex rel. v. Williams, 221 Mo. 227; State ex rel. v. Elkins, 130 Mo. 105; State ex rel, v. Fort, 210 Mo. 525; State ex rel, v. Sale, 188 Mo. 497; State ex rel. v. Stover, 126 Mo. 655; State ex rel. v. Wood, 155 Mo. 425; State ex rel. v. Withrow, 154 Mo. 397; State ex rel. v. Oloe, 152 Mo. 466; State ex rel. v. Denton, 128 Mo. App. 314; State ex rel. v. Spencer, 166 Mo. 271; State ex rel. v. Dillon, 96 Mo. 56; State ex rel. v. Dearing, 180 Mo. 69; State ex rel. v. Barnett, 111 Mo. App. 558.

      Orville M. Barnett for respondent.
    (1) No exercise of visitorial power over the internal affairs of foreign corporation would be required to prove allegations of petition below. Pfeffer v. Ins. Co., N. Y. L. J., July 28, 1911, p. 1851; Harrison v. Ins. Co., 63 Misc. N. Y. 93, affirmed 201 N. Y. 85; Castagnino v. Mutual Reserve, 157 Fed. 29; Guilford v. Western Union, 59 Minn. 332; Straus v. Mutual Reserve, 126 N. C. 971; Ebert v. Mutual Reserve, 81 Minn. 116; Benjamin v. Mutual Reserve, 146 Cal. 34; 19 Cyc. 1238 (3); 13 Am. & Eng. Ency. Law, 849 (14); Pierce v. Ins. Co., 145 Mass. 56; Art. 12, Ch. 21, R. S. 1909. (2) The courts of Missouri are not without power over foreign insurance companies should an injunction be granted and that injunction ignored. R. S. 1909, See. 7069 ; 22 Cyc. 1022; Eureka Co. v. County, 116 U. S. 410; 22 Cyc, 1012. (3) A demurrer to the petition will not lie because some of tbe relief prayed is beyond tbe power of tbe courts to grant. Liese v. Meyer, 143 Mo. 547; Crosby v. Bank, 107 Mo. 436; Henderson v. Dickey, 50 Mo. 161; McGlothlin v.Henry, 44 Mo. 350; 31 Cyc. 297. (4) Tbe policies are Missouri contracts and will be construed according to the laws of Missouri. Daggs v. Ins. Co., 136 Mo. 382; State ex inf. v. Oil Co., 194 Mo. 149.
   "WOODSON, J.

This is an original proceeding begun in this court by tbe petitioner, seeking to pro-, bibit tbe respondent, as judge of tbe circuit court 'of Pettis county, from further proceeding with tbe trial of tbe case of Peter Courtney against tbe Hartford Life Insurance Company (a mutual concern), pending in said court.

The substance of tbe changes made in tbe petition in that case is- that tbe plaintiff entered into a contract with the defendant, by which it insured his life,, for a certain sum, evidenced by a certificate of membership, dated January 27, 1882, for and in consideration of tbe.premiums stated in a table of rates stated in .said certificate, which rates vary according to tbe áge of tbe insured and tbe amount of outstanding insurance in force at tbe time each..quarterly assessment is made. . .

Said table of rates is as follows:

, “Table of Graduated Rates for Death Losses for Every $1,000 of a Total Indemnity of $1,000,000.
Age. ' Rate. Age. Rate. Age. Rate.
15 to 21 $0.65 35 $0.97 49 $1.40
22 .67 36 1.00 50 1.47
23 .69 37 1.03 51 1.54
24 • .71 38 1.06 52 1.63
25 - .73 39 1.09 53 1.72
26 .75 40 1.12 54 1.81
27 ■ .77 41 1.14 55 > 1.92
28 .79 42 1.16 56 2.03
29 ' .81 43 1.18 57 2.15
30 • .83 ■ 44 -1.20 58 2.32
31 .85 45 1.22 59 2.50
32 " ' .88 46 1.25 60 2.68:
3’3 .91 47 1.30
'34 ' .94 48 1.35

At the bottom of this table was the following statement:

“These rates decrease in proportion-as the total indemnity in force increases above one million dollars in amount, and are calculated so as to cover the usual expense for collecting.”

The plaintiff alleges, “that on the 25th day of January, 1896, he reached the age of sixty years, and since that date the defendant has fraudulently assessed the plaintiff on each of the five certificates or contracts, which he held in defendant’s company, in excess of $2.68 for every $1000' on a total indemnity of $1,000,000, and ‘prays judgment against defendant (1) that the defendant be perpetually enjoined from assessing the plaintiff upon his contract at a rate in excess of $2.68 per $1000 on a total indemnity of $1,000,000'; (2) that the defendant render an accounting to the plaintiff in excess of said rate since the 25th day ofi June, 1896, with interest upon each excessive payment since the date of said payment," and (3) that the plaintiff have judgment against the defendant for the sum so found to be due the plaintiff upon such accounting, and that the plaintiff have such other and further relief as may to the court seem just and equitable, besides the costs and disbursements of this action.’ ”

The defendant appearing specially demurred to this petition on Jhe ground that the court had no jurisdiction of the person of the defendant or the subject of the action, nor jurisdiction to grant the relief therein prayed for, which demurrer was overruled by the court, of which the respondent H. B. Shain is the judge.

The petition for the writ filed in this court charges that the circuit court of Pettis county has no jurisdiction of the defendant in that cause for the reason that the remedies sought, if granted, would interfere with and disturb the internal affairs of the petitioner company, a corporation of Connecticut, with its principal office and officers located in that State'; also for the reason that said court has no jurisdiction to grant the reliefs prayed for by the plaintiff in that case.

Shortly after the circuit court overruled the defendant’s demurrer to the plaintiff’s petition in that cause, the former filed in this court its petition in this cause for a writ of prohibition.

After due consideration, the preliminary rule was granted and duly served upon the respondent. In due time he filed his return, admitting the facts pleaded, but tendered issues of law upon the facts. Thereupon, the petitioner moved for judgment upon the pleadings.

I. The facts of this case are admitted and are embraced within a small compass, and thereupon are predicated, for determination, but two legal propositions, namely: First, has the circuit court of Pettis county jurisdiction to order an accounting of the petitioner’s business affairs, and to determine therefrom, whether or not the plaintiff, in the .case of himself against the petitioner, pending in said court, has been, and is being charged excessive and illegal premiums upon his policy of insurance; and, second, if so, has said court jurisdiction to render judgment for the excessive sums so paid and to enjoin the future collection of said excessive premiums?

The latter proposition depends upon the former, and whichever way that, question is disposed of will largely control the disposition of the latter, consequently, we will consider the propositions in the order stated.

Counsel for respondent has with much care and due deliberation, stated the rule, which in his opinion should govern the interpretation of the policy of insurance, in question, regarding the premiums due thereunder, hut he cites no authority whatever in support of his position.

It seems to us that learned counsel has misconceived the object and purpose of this proceeding. The questions- involved, as previously stated, challenge the jurisdiction of the circuit court of Pettis county to pass upon the propositions stated, and not the correctness or incorrectness of the interpretation to be given to the policy of insurance mentioned in the evidence. If it has not the jurisdiction to pass upon those questions, then it would be useless to announce the rule of interpretation which is to govern the policy, for the simple reason that it would have no force or effect whatever, even though it should be conceded that the correct rule should be announced and the proper decree entered.

The principal proposition here presented for determination is not a new one. It has been before this court, and other courts of this country in a number of cases; and so thoroughly and ably has it been considered, that there remains but little, if anything, new, that can be said upon the subject. We will, therefore, be content, with the disposition of the question, by quoting from a few of the opinions of some of the courts passing upon the question.

The case of Clark v. Mutual Reserve Fund Life Association, 14 App. District of Columbia, 546, involved "this precise question. There the company was a mutual concern, organized under the laws of New York; and the plaintiff who held a certificate of membership therein, brought suit in the District of Columbia, against the defendant, charging in the bill that the defendant company had illegally and contrary to the contract of insurance, adopted an arbitrary and unauthorized method of levying assessments, and in pursuance thereto was levying, and was threatening to- continue to levy, illegal arid excessive assessments against the plaintiff and his co-members; that said illegal and fraudulent assessments had been, and were being made, and enforced as a part of a scheme on the part of the officers and directors of the company to force plaintiff and other members either to pay such fraudulent and excessive assessments for their insurance, or to drive them out of the company and compel them to forfeit all moneys that had been paid in and contributed thereto. The relief asked was:

1. Injunction to restrain the defendant and its agents from levying illegal and excessive assessments in the future.

2. Discovery and the proper ascertainment of the correct and true amounts that should have been levied upon the plaintiff and other members, and that an accounting be had between the plaintiff 'and defendant in that regard.

3. That the court determine the true and proper amount of the assessments that should have been levied, and that the defendant be compelled to refund the unauthorized excess.

A demurrer was filed by defendant to the bill upon the ground that the court for the District of Columbia had no jurisdiction to entertain a suit by plaintiff, a member of the defendant association, to grant the relief sought against a foreign corporation, which demurrer was sustained and plaintiff appealed. The Court of Appeals held that the courts of the District of Columbia were without jurisdiction in the premises, and said:

“But apart from this defect in the bill, in considering the case on demurrer, there is a broader and more insuperable objection to the bill than that just referred to, and that is the want of jurisdiction in the court to extend its remedial processes to restrain and control the internal affairs and administration of corporate duties and functions of the defendant, a foreign corporation. It was upon this ground that the court below acted in sustaining the demurrer and dismissing the bill.
“The principal ground of complaint appears to be the alleged or supposed illegal enhancement of the rate of assessment levied and collected of the plaintiff, over and above the rate specified in the table of rates indorsed upon the certificate of membership. This increased rate of assessment would appear to be the result of a change of policy on the part of the defendant association, founded upon a supposition that it was inequitable and unjust that the assessment should be based upon the age of the member at the time he obtained his certificate of membership and the just and metre equitable rule would be to make the assessment with reference to the age of the member at the time the case is made. This may, and certainly would appear to, work great hardship upon the older class of membérs. But the question is, has a court of equity in this district the power or jurisdiction to com rect the wrong, if it be one? If this were an action to recover money due on the policy, or an action by the defendant association to recover money due for assessments, or any money of one party to the other, then, in all such cases, and others that might be suggested, instituted in the courts of this district, the jurisdiction of the court of equity here might be invoked to prevent injustice and wrong. In all such cases the party aggrieved has the right to sue and obtain effective remedy against foreign insurance companies, having an agency here and doing business in this district. This is provided for by the Act of Congress of 1887, Ch. 46, Sec. 4, 25 Stat. at L., p. 369. That act provides for the due appointment of an agent in this district as a condition upon which a foreign, insurance company is allowed to do business here — the agent being made competent to receive service of process in suits against the company appointing him. But that manif estly does not contemplate or apply to cases such as the present.. It does not contemplate suits here against foreign insurance companies, the object and effect of which would be to restrain their home administration, and to ransack and overhaul their internal affairs, in order to determine whether their proceeding has been in all respects legal and in accordance with the law of their creation, and of their by-laws, as they may affect their individual members. It is clear the Act of 1887 does not attempt to make foreign insurance companies, doing business here under this statute, corporations of this district. For, as said by the Supreme Court in the case of Pennsylvania Ry. Co. v. St. Louis A. & T. H. Ry. Co., 118 U. S. 290, £To make such a company a corporation of another State, the language used must imply creation or adoption in such form as to confer the power usually exercised over corporations by the State, or by the Legislature, and such allegiance as a state corporation owes to its creator. The mere grant of privilege or powers to it as an existing corporation, without more, does not do this, and does not make it a citizen of the State conferring. such powers.’ The Act of 1887 contains no language that could imply creation or adoption of these foreign insurance corporations, but only the grant of privileges or powers to existing corporations of other jurisdictions, upon complying with certain conditions. The class of laws granting such privileges and powers, say the Supreme Court, in the case just referred to, £are common in authorizing insurance- companies, banking companies and others to do-business in other States than those which have chartered them.’ Such acts do not extend the jurisdiction of the courts of one State and authorize them to reach over their territorial limits into the jurisdiction of another State, and bring into review and revision the corporate acts and internal affairs of the local corporation of the latter States. Such a power if attempted to be exercised would be futile and ridiculous. Indeed* neither the Legislatures of the States, nor the Congress of the United States, could confer such powers.
“In this case, it is proper to observe the prayer of the bill. The prayer is that an injunction may issue to restrain the defendant and its agents from collecting any sum upon call No. 97, dated April 1, 1898, and upon all subsequent calls in excess of the rate in force at the date of the certificates of membership issued to the plaintiff, and from in any manner declaring lapsed or void the policy or certificate held by the plaintiff, and commanding the defendant to retain the plaintiff as a member and policy holder in good standing during the pending of this suit, with the same force and effect as if he had paid all calls or assessments.
“Now, in the first place, all assessments and dues, required to be paid by the certificate holder, as also the amount of the policy itself by the defendant, are payable and are required to be paid, at the home office of the defendant in the City of New York, and this being so, it is a little difficult to imagine how a court in this State could restrain and direct the action of the corporation at its home office in the City of New York. Suppose the injunction be issued as prayed, and to be served upon an agent in this district, and the board of directors of the corporation were to refuse to recognize it, and proceed to forfeit and declare null and void the certificate or policy of the plaintiff, for default of payment of assessments, as according to the terms of the certificate they are authorized to do — how would or could the court in this district' deal with such conduct? For the disregard or violation of an injunction the ordinary remedy is a proceeding and punishment for contempt. But how can this be made effectual as against parties beyond the jurisdiction of the court and who claim to be proceeding in accordance with what may be legal authority derived from their own State. It is very clear, therefore, that this prayer for an injunction cannot he granted.
, “The next prayer is that the defendant he required to discover to the plaintiff its books and accounts showing losses, mortality, expenses and particularly- the salaries of ea.ch individual officer of the association, assessments and matters and things incident thereto, since the plaintiff became a member of the association, etc., whereby correct and true assessments and amounts which should have been at all times levied upon the plaintiff and other members of the association may he ascertained, and that an accounting be had between the plaintiff and defendant.
“It is hardly nécessary to say that a court of equity in this district has no such power or jurisdiction over the affairs of a foreign corporation as to require such a discovery and accounting as prayed "for in this bill. Upon such a theory as is here propounded, no corporation could ever venture to conduct business beyond the limits of the State of its creation. According to the principle of this prayer, any business transaction of an insurance company which might take place in a State other than that of the company’s creation, and which could be alleged to affect the assets of the company, and the interest of its members, would furnish the ground for calling for discovery, the production of books, and for a general accounting. Upon any such principle it would be very perilous for any insurance company to attempt to do business beyond the limits of the State of its creation. It might have half a dozen courts in as many different States, requiring discovery and demanding the production of books, and directing the statement of accounts, all at the same time. • Thére is no principle that would justify such a proceeding.
“Then again it is prayed that the true and proper amount of assessments be made and determined, - and that it also be determined what amount the plaintiff has already paid in excess of the rate of assessment that should have been levied upon him, and that the defendant be compelled to refund the same, and that there be directed and required to be made a proper application of the reserve fund, in accordance with the requirements of the certificates of membership.
“This prayer, like the preceding, requires a complete overhauling and scrutiny of the entire administration of the internal affairs of the corporation, from the time that the plaintiff became a member down to the present time, and nothing short of a full and complete account would enable the court to decree in accordance with the prayer.
“It is thus apparent from the statement' of the facts alleged in the bill, and from the several prayers based thereon, that the relief sought, if it should be granted, would require the control, direction and revision of the internal affairs of the corporation by a court of equity of this district. This, we think, upon authority, cannot be done. The law would seem to be too well settled to admit of such a question, that where the acts complained of affect the plaintiff in his rights of corporator, or stockholder, or as a member of a mutual benefit insurance company, or other corporation, and the acts are those of the corporation, done and performed in the course of the administration of the corporate affairs, and especially when claimed to have been done and performed, or authorized to be done, by virtue of authority derived from its by-laws, the courts of another State or jurisdiction will not interfere or attempt to exercise jurisdiction, to direct,' control or revise corporate action. To assume jurisdiction over the affairs of a foreign corporation would inevitably lead to conflicting decisions, resulting in confusion and needless litigation, and the making of orders and decrees simply to be contemned, because not capable of being enforced. The court, if it were to undertake to act in such cases, has no power, and' therefore cannot bring the officers or the corporate books or the assets of the corporation within its jurisdiction, to be subject to its process. Its decrees could only be enforced by proceedings for contempt, and yet there would be no person here, subject to that process, to be coerced to act for the corporation. The mere local agent, clearly, would not be such person. It may well be said, therefore, as was said by the court in the case of Leary v. Columbia River & P. S. Nav. Co., 82 Fed. 775, on an application very analogous to the present that ‘the authorities cited by counsel for the defendant corporation show clearly and strongly that courts having jurisdiction to enforce their decrees in the State where the corporation has its home office should be resorted to in all cases where it is necessary to inquire into and regulate the internal affairs of the corporation’ and not to courts of a different State of jurisdiction.”

The same principle was recognized and approved by this court in the case of State ex rel. Minnesota Mutual Life Insurance Company v. Denton, 229 Mo. 187. In discussing that question Judge Valuant, in a clear and able opinion, in speaking for the entire court, on page 195, said:

“From this return it may be inferred that the learned judge in overruling the demurrer did not construe the petition as one aimed to bring about a visitation of the affairs of the relator, but only to obtain a money judgment for a balance found to be due plaintiff after such an accounting as a court of equity could cause to be made.
“It is within the scope of equity jurisdiction to cause an accounting to be made under some circumstances and to render judgment for the balance ascertained. But the money judgment is to follow the accounting and if the conditions surrounding the case are such as to put the accounting beyond the reach of the court it has no jurisdiction to render a money judgment, . . . but if the accounting is such that the court has no power to make, and would involve destruction of rights which could not be restored, an appeal would be of little if any avail. In this case before the balance, if any, that is due the plaintiff could be ascertained, there must be a complete visitation of the corporation, a thorough inquiring into all of its affairs and an ascertainment not only of the condition of the account of the corporation with this plaintiff, but of the account of all its members who now have or have ever had policies on the assessment plan, no matter how numerous they may be, or through how many States they may be scattered, because this is a mutual concern and the accounts of all are involved in the account of one. Such an accounting is not beyond the jurisdiction of a court of equity that may have full jurisdiction of the corporation, but it is beyond the jurisdiction of a court of equity that has only the limited or qualified jurisdiction over a foreign insurance company that is given by our laws to our courts. When license is granted a foreign insurance company to do business in this State, one of the conditions on which the license is granted is that it name an agent on whom service of process may be made, so that it may be called into court to answer a suit on a contract, and our courts have ample jurisdiction to compel performance of obligations by such companies. Nor are our citizens wholly without the right to have the internal affairs of such corporations examined and their methods of business, and their ability to perform their obligations ascertained, and their abuses, if any, corrected, without going into another State for that purpose; but that power is lodged in the Superintendent of Insurance, who may, until he has been allowed to make the examination and'is satisfied, refuse to grant a license, or having granted, may, for good cause, revoke it. But beyond the power of the court to enforce the performance of a contract and beyond tbe power of tbe Superintendent of Insurance to correct tbe evil, if a citizen of tbis State wants further redress involving a judicial investigation into tbe affairs of tbe foreign corporation of which be is a member, be must go to a court in tbe State where the corporation is at home.
“A court of equity never does a vain act, it never decrees what it cannot compel to be performed. If tbis were a domestic corporation tbe court could decree such an accounting as prayed, appoint its commissioners to go' to the office of the corporation and overlook and examine all of its books, appoint a receiver, if it deemed proper, to take possession of all its assets and administer the same under the direction of tbe court pendente lite, and if tbe corporation or its officers should refuse to surrender its books or assets, there would be sufficient executive power forthcoming at tbe call of tbe court to enforce its decree. But tbe commissioner or tbe receiver In such a case is but tbe representative of the court; he is, while he keeps within bis decrees, pro Tiac vice, tbe court. Where he goes the-court goes and what he does the court does. Can the circuit court in this case, in the person of its representative, go to Minnesota and take charge of the affairs of this corporation there? If the corporation should .refuse to turn over its books to the commissioner or its money to the receiver, what could the court do? A court has no right to put itself in a position where its orders may be treated with contempt; tbe very fact that it could not force obedience shows its lack of authoritv to render the judgment.
“There are, according to the question, a large number of holders of policies like those held by tbe plaintiff, scattered, perhaps, over many States, each of whom has as much right to bring a like suit in his State as the plaintiff has to bring this suit. Each of those many policy holders would have an interest in each of tbe many suits, because in a mutual concern the interest of one cannot be determined without determining the interest of all, or at least the basis on which the interest of all must be calculated. It would be a strange system of law that would involve a concern in such confusion. If such were the law no insurance company would venture to do business outside of its own State.
“It would be impossible for the circuit court to render an intelligent judgment for the money which the plaintiff says he has been unlawfully compelled to pay in excess of the legitimate assessments, without entering into the elaborate accounting above indicated, and since the court has no jurisdiction to make such an accounting it has no jurisdiction to render such a money judgment.”

In the case of Condon v. Mutual Reserve Fund Life Association, 44 L. R. A. 149, 89 Md. 99, decided by the Court of Appeals of Maryland, in which, among other things, the plaintiff prayed for an injunction and an accounting against defendant for so-called excessive assessments, the court said: “No court could declare them excessive until.it knew what sum was not excessive; and no court could decide what sum was not excessive until it was placed in the full possession of all the facts pertaining to the whole internal conduct of the company. These observations also apply to the charges of the bill in respect to the amount of the reserve fund bonds issued to Condon. It is alleged that a true accounting will show him entitled to bonds for larger amounts. A true accounting can only be had by an examination of all the entries relating to this fund, and by correcting errors, if any there are. Obviously, this would involve a control of the company’s internal affairs by the agency of an injunction issued by a Maryland court, though that court possesses no power to enforce the injunction if its commands were treated with contumely by the corporation. ’ ’

The case of Taylor v. Mutual Reserve Fund life Association, 45 L. R. A. 621, was a suit in the courts of Virginia by Taylor, a member of the defendant company, organized under the laws of the State of New York, alleging the levying of illegal and fraudulent assessments in violation of the provisions of the policy, and praying that the defendant be required to make an exhibit of the company’s books and papers so it could be determined what would be the proper rate of assessment, and when such was determined the court should decree that the compauy should receive such assessments and keep’ the certificate of membership in force, and that it be enjoined from levying assessments other than in accordance with the standards fixed by the court, and that the company be required to exhibit a list of all its certificates of membership in force at a given date, and that generally an accounting be had between the parties. This bill was demurred to on the ground that the case stated and the relief prayed would require the court to interfere with the internal management of a foreign corporation at the suit of a member, a subject-matter over which it has no jurisdiction. The demurrer was sustained and the plaintiff appealed to the Supreme Court and the action of the lower court in sustaining the demurrer was upheld. And in doing so, the court said: .

“The wrongs complained of by the appellant in his bill, briefly stated, are the imposition of illegal assessments upon him and other members of the association over sixty years off age. . . .
“Not only are the acts complained1 of, acts which relate to the internal management of the association, but the relief sought, if granted, would require the courts of this State to control and overhaul that management.
“The first prayer is that the association be enjoined and restrained from taking any proceedings to have the appellant’s certificate'of membership or policy of insurance declared lapsed or forfeited. This prayer is based upon the allegation that the association had threatened to declare it forfeited if he did not pay what is charged to be an illegal and extortionate assessment.
“If the court were of opinion that the assessment was invalid, how could it restrain and control the association at its home office in the State of New York, where the assessments were to be paid. It would have no power to enforce its restraining order, if the association refused to obey it. It is clear that an injunction ought not to be granted which cannot be enforced, tCases cited.]
“Another prayer of the bill is that the association be required to exhibit its books, papers and vouchers, and furnish a list of its policy holders, for the inspection of the appellant, in order that he might ascertain from them whether or not there has been any fraudulent misappropriation of the assets of the association by its officers and agents, and in order that the court could determine what would be a reasonable rate of assessment upon the appellant, and, when it had determined what would be a reasonable rate, to decree its payment, require the association to receive it, give receipts therefor and to keep his policy alive, or to issue him one of its new policies. In order to grant such relief it would be necessary for the court to investigate, overhaul and control the management of the internal affairs of the association. It is manifest that the courts of no State other than that of the domicile of the foreign corporation ought to attempt to exercise any such power over it. To do so would render it dangerous, if not impossible for a corporation to do business beyond the limits of the home State. Its books and papers might be required at the same time in the courts of many or all of the States in which it was doing business. Each of these courts, after overhauling its internal management, to see what would he a reasonable rate of assessment, might determine that question differently, thus leading to confusion and injustice in the administration of the internal affairs of the corporation. Courts; even if they had such power, would he slow to exert it when its exercise would lead to such results, but would leave the parties to litigate their rights in the courts of the State under whose laws the corporation has been created and where such matters could alone be properly settled. . . .
“The counsel for the appellant insists that, although this court may not be able to grant all the relief prayed for, it ought to construe appellant’s contract with the association, and determine what his rights are under it, and thus render those questions res adjudicata; this contention cannot be sustained. The case made and the relief sought not being within the jurisdiction of the court, it has no power to construe the contract. Whenever a court determines that it has no jurisdiction of a case, it should express no opinion on the merits of the controversy. The only course which a court can rightfully pursue in such a case is to decline to speak at all where it cannot speak by the law.”

The principle announced in the last clause of the foregoing opinion was enforced by this court in Banc, on June 10, 1912, in an opinion by Graves, J., in the case of State ex rel. v. Grimm, 243 Mo. 667.

And in discussing the same principle, which was involved in an injunction case, brought by Lunday, a resident of the State of Texas, to restrain the Royal Fraternal Union, a Missouri corporation, from forfeiting and cancelling a policy of insurance, for reasons stated, which the plaintiff claimed to have held'in said defendant company, the Texas Civil Court of Appeals, 51 Tex. Civ. App. 640, said:

“It thus appears, from the allegations of the appellee, that he is asking a coiirt of equity in this State to enjoin the officers and agents of a foreign corporation domiciled in another State from doing certain acts in and about their business affairs in that State. The court below having granted the relief prayed' for, let us suppose that this court should affirm the judgment. The question would then arise: How is such a decree to be enforced in the event the officers and agents of the appellant company should persist in doing the acts prohibited? , Such a judgment could only act in personam, and obedience to the court’s mandate can be compelled only by an attachment of the body of the contumacious individuals and the infliction of some punishment. In the case before us, all of the parties against whom the order of the court is directed, are permanently domiciled beyond the territorial jurisdiction of the court, and cannot be reached by any process issued therefrom. It is therefore evident that such a decree would be utterly futile. . . .
“It is true that there are instances in which a court of equity situated in one State will enjoin the performance of acts beyond its territorial jurisdiction, but this seems to be limited to cases where the parties against whom the injunction is sought reside within the jurisdiction of the court. Such judicial restraint imposed upon the conduct that may be enacted beyond the jurisdiction of the court are predicated upon the principle that such judgments are intended to operate only upon the person,’ and that, if the parties against whom they are directed are within the jurisdiction of the court, the decrees can be enforced and are not considered an interference with the jurisdiction of any other tribunal over the subject-matter of the- controversy. It would seem that if the justification for the exercise of this power is to be found in the fact that the party defendant resides within the territorial jurisdiction of the court rendering the decree, it would follow that no such authority would be exercised where this situation does not exist.” See Hewitt v. Price, 204 Mo. 31; Cole v. Cunningham, 133 U. S. 107.

If such companies persistently, violate the terms of their policies'of insurance in the manner charged, for instance, in the case of Courtney v. Hartford Life Insurance Company, pending in the circuit court of Pettis county, then as Judge Yaxjmant justly observed in the case of State ex rel. v. Denton, supra, the aggrieved party may-appeal to the Insurance Department of the State, which has plenary power to redress the wrongs done, if any; or if such party is satisfied that the terms of his policy are being illegally violated, then he can protect his rights by tendering to the company the sums actually due under the terms of his policy, as they become due, instead of paying said illegal and excessive quarterly assessments made and demanded of him, and at the maturity of the policy, the company would be as fully liable on the same, as if it had accepted the same, and had not exacted the illegal and excessive assessments.

In this, however, he would act at the peril of being incorrect in the amounts tendered.

it. The conclusions just announced in paragraph one of this opinion, for all practical purposes, also dispose of the second proposition stated at the beginning of this opinion, and we will for that reason withhold all further observations upon that branch of the case.

Entertaining these views of the law, in our opinion, the circuit court of Pettis county, has no jurisdiction to take the accounting prayed for,-nor to grant the relief asked.

We are, therefore, of the opinion that the preliminary rule in prohibition heretofore issued, should be made perpetual; and it is so ordered.

All concur.