author: GEAVES, J.

text:
    THE STATE ex rel. BOWLING GREEN TRUST COMPANY, EQUITABLE TRUST COMPANY OF NEW YORK, METROPOLITAN TRUST COMPANY OF THE STATE OF NEW YORK, GEORGE J. GOULD, EDWIN GOULD, ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, and WABASH RAILROAD COMPANY v. JAMES D. BARNETT, Judge of Audrain Circuit Court.
    In Banc,
    July 2, 1912.
    1. PROHIBITION: Demurrer to Petition: No Return: Overruled: Further Pleading. A demurrer challenging the sufficiency of relator’s petition for a writ of prohibition makes the facts stated in the petition the facts of the case; it admits all well-pleaded facts stated in the petition, and if those facts, thus admitted, show relator’s right to the writ, the demurrer must be overruled, the writ made permanent, and no further pleadings will be tolerated.- But by the facts is not meant conclusions of law.
    2. -: Jurisdiction: l^ack Shown By Petition: By Failure of Service. The petition in the case pending in the circuit court may show a want of jurisdiction of the cause. Likewise a failure to show service of process upon defendant may show a lack of jurisdiction.
    3. -: -: Of Subject-Matter and Particular Case. The case pending in the circuit court may be one of a class over whose subject-matter the court has jurisdiction, yet it may not have jurisdiction of the particular case; and that lack of jurisdiction may be disclosed by the bill or petition filed in said court.
    4. -: -: To Have a Mortgage Declared Junior Lien: Foisting Jurisdiction on Court. Where the facts set out in the petition clearly show that a refunding mortgage is a subsequent and junior lien to a debenture mortgage, on a defendant’s railroad properties in this State, and the refunding mortgage, also set out, expressly recognizes the debenture mortgage as the superior lien, the circuit court, otherwise without jurisdiction, cannot take cognizance of the cause of action upon a mere prayer in the petition asking the court to declare the refunding mortgage to be a subsequent and inferior lien, there being no allegation that defendants had done anything indicating that they had not recognized the refunding mortgage as a junior lien. It is idle to ask a court to compel defendants to do what the petition alleges they have already done. Jurisdiction cannot be foisted upon the court in that manner.
    5. -: -: Cancellation of Bonds Held in Another State. A Missouri circuit court has no jurisdiction to render a judgment touching personal property in New York held in trust for the benefit of persons not before the court. It has no jurisdiction to cancel certain debenture bonds held in New York under a trust agreement to be performed in New York, especially when many persons who the petition alleges are interested therein are not before the court either by publication or actual service. If the non-resident have no property in this State there is nothing upon which a Missouri court can adjudicate.
    6. -: -: Suit Pending. Where the petition on its face alleges that the trustee in a debenture mortgage brought suit in a Federal, court, having jurisdiction, to have the right of all claimants under' that mortgage adjudicated, which is the object of the suit brought in the State court, and further alleges that said suit is still pending and undetermined, and does not show that any demand has ever been made by plaiutiffs that said trustee go forward with isuch suit or that it had declined to do so, the State court has no jurisdiction of the cause.
    Prohibition.
    Writ allowed.

      James L. Minnis for relators; Wells H. Blodgett. Martin B. Clardy and Nagle é Kirby of counsel.
    (1) The demurrer admits all the substantial, material and traversable allegations of the petition. State ex rel. v. Eby, 170 Mo. 522. (2) The suit in the circuit court does not involve or seek to affect any real or personal property situated within the jurisdiction of that court. By Sec. 1674, R. S. 1899, the jurisdiction of circuit courts is confined to the respective counties in which’ they may be held. The question, then, is whether the suit in the circuit court involves or seeks to affect any real or personal property situate in Audrain county. This question must be determined from the facts stated in the bill,-for it has been often said by this court that “an allegation of a conclusion of law raises no issue, need not be denied, and is- as though it had not been pleaded. ” Mallinckrodt v. Nemnich, 169 Mo. 397. (3) The' only rélief asked with respect to property (aside from the bonds and stocks hereinafter mentioned) is a decree adjudging the debenture mortgage a lien on the railroad property of the Wabash Company prior to the lien of the refunding mortgage. As said by the" court in State ex rel. v. L. & L. Co., 171 Mo. 671, “The character of the action is determined by the facts stated in the petition, and not by the prayer for relief or, as said in State ex rel. v. Dearing, 180 Mo. 63, ‘ ‘ Moreover, the jurisdiction of the court is not determined by the prayer for relief, but by the facts stated which constitute the cause of action.” On the authority of these cases, this part of the prayer may be disregarded, because it is contrary to the facts averred in the bill. According to the bill the debenture mortgage was not only executed more than sixteen years prior to the refunding mortgage, but the refunding mortgage expressly recognizes the debenture mortgage as constituting a prior lien. The first paragraph of the prayer of the bill is therefore merely colorable. The only reference to property is that the Wabash Company conveyed by the debenture mortgage “certain lines of railroad, roadbed, rolling stock, rights of way and other properties, both real and personal, as in said mortgage more particularly described, a large part of which real property and much of said personal property then were and now are situate in Missouri.” This language does not identify any property. In any event, it cannot be claimed that it describes any property situate in Audrain county. It is true the bill states that the railroad property above mentioned is fully described in the- debenture mortgage and that a copy thereof is attache! to the bill as an exhibit, but this court has often ruled, that an exhibit forms no part of the record of a cause. State ex rel. v. Crum, 157 Mo. 545. The order of publication does not describe any property except the bonds and stock- hereafter mentioned. Sec. 575, R. S. 1899; Winning v. Trueblood, 149 Mo. 572. - If the railroad property referred to in the bill had been described therein and in the order of publication, the posture of the case would not have been changed, as we shall hereafter show. (4) The only object of the suit.is to obtain a decree adjudging that the exchanged debenture bonds nowi held in New York by the Bowling Company or its successor, the Equitable Company, as trustee under the collateral provisions of the refunding mortgage, have been paid and requiring that they be canceled. The only object of the suit in the circuit court is to obtain a decree adjudging the exchanged debenture bonds now held in New York by the Bowling Company, or its successor, the Equitable Company, have been paid, and appropriate orders to make such decree effective. (5) The circuit court has not jurisdiction of the subject-matter of the action. The circuit court has no jurisdiction, on notice by publication, to enter a decree in a suit against nonresident trustees, and some of the nonresident beneficiaries, but not all the beneficiaries, adjudging or affecting the status of property held in trust in a sister State. Sec. 1674, R. S. 1899; Penoyer v. Neff, 95 U. S. 714; Carr v. Coal Co., 96 Mo. 155. (6) The circuit court has not jurisdiction of the persons of the nonresident defendants. State ex rel. v. Dearing, 180 Mo. 62; Sec. 575, R. S. 1899. (7) The circuit court has not jurisdiction to enter a decree or order against the resident defendants. No relief is asked against the Iron Mountain Company. The relief prayed against the Wabash Company is predicated upon a decree against the Trust Companies adjudging that the exchanged bonds have been paid. The disposition of the case as to the Trust Companies would therefore seem to dispose of the case as to the other codefendants. But it is elementary law that a court of equity has not jurisdiction to enter an order against any defendant in a case unless it has before it all the parties necessary to a complete determination of the litigation. Harris v. Pullman, 84 Ill. 20. (8) The United States Circuit Court has jurisdiction not only of the matters stated in the bill in that suit, but of the entire subject-matter of the debenture mortgage and bonds — which may be properly brought to the attention of that court by an amended or supplemental bill; and its jurisdiction excludes the jurisdiction of any other court over any part of the subject-matter of that suit. State ex rel. v. Reynolds, 209 Mo. 261; Byars v. McCauley, 149 U. S. 608; Porter v. Sabin, 149 U. S. 473; Shields v. Coleman, 157 U. S. 168. (9) Where a mortgage provides that the trustee alone shall sue, a bondholder cannot sue, unless the trustee refuses to sue, or otherwise disregards his obligations as trustee, in which event it is necessary that these facts should be averred, and that the trustee should be joined as a defendant in the suit. Cook on Corp. (6 Ed.), Sec. 826; Railroad v. Fisher, 104 Va. 121; Electric Co. v. Electric Co., 87 Fed. 590; Consolidated Co. v. City, 92 Fed. 759; Morgan v. City, 15 Fed. 55.

      Barclay, Fauntleroy & Cullen for respondent.
    (1) The writ of prohibition goes only to restrain the assumed exercise of jurisdiction where none exists. If the court whose action is complained of acts within its jurisdiction, but commits an error, the writ of prohibition will not lie. Want of prohibition cannot be made to serve the purpose of a writ of error or certiorari. State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Railroad, 100 Mo. 59; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Johnson, 132 Mo. 105; State ex rel. v. Moelenkamp, 132 Mo. 134; State ex rel. v. Wood, 155 Mo. 425; Wand v. Ryan, 166 Mo. 646; State ex rel. v. Henderson, 164 Mo. 347; Delaney v. Court, 167 Mo. 667; Davison v. Hough, 165 Mo. 573; Schubach v. McDonald, 179 Mo. 163. (2) The debenture bonds and mortgage gave to the holders of said bonds the right to elect one-half of the highest officers, one-half of the members of the board of directors of the Wabash Company, and to vote at all meetings of the stockholders of the Wabash Company, and therefore the plaintiffs in this case have a right to complain of the illegal increase or overissue of stock, and to maintain a bill in equity to set aside and cancel same. 1 Cook on Corporations (6 Ed.), Secs. 291 and 297. (3) By the express words of the statute service by publication may be obtained in suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of liens against either real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court, and such language is broad enough to include such actions as the one now pending in Audrain county. State ex rel. v. Ross, 122 Mo. 461; Railroad v. Poching Co., 46 Fed. 584; Mitchener v. Holmes, 117 Mo. 185; Smith v. Mining Co., 47 Mo. App. 409; Clark v. Brotherhood, 99 Mo. App. 687. (4) The statute authorizing service by publication does not require th^t the publication contain a detailed description of the property, except in suits for the partition of land. In an action similar to the one now being considered the publication need only state “briefly the object and general nature of the petition.” In cases involving liens, created by contract, jurisdiction arises out of the lien, which is the basis of the action. The same rule applies as in attachment cases. Randall v. Snyder, 214 Mo. 33; Williams v. Lobban, 206 Mo. 408; Harris v. Grodner, 42 Mo. 159. (5) It is admissible to a certain extent in pleading in chancery to file written exhibits, and to refer to them as part of the bill. This may be done in general terms, and the exhibits may be referred to for greater certainty as to particular details. When a bill, as in this case, not only refers to, but makes a certain instrument a part of the bill itself, such instrument may be used in aid of an indefinite statement. Tel. Co. v. Tel. Co., 34 Fed. 803; Hood v. Inman, 4 Johns. Ch. (N. Y.) 437; Land Co. v. Foundry Co., 96 Ala. 389; Moore v. Titman, 33 Ill. 357; Electrolibration Co. v. Jackson, 52 Fed. 773; Hastings v. Belden, 55 Vt. 273; Surget v. Byers, Hempst. (H. S.) 715; Board v. Board, 154 Fed. 238; Williard v. Davis, 122 Fed. 363. This court has considered an exhibit as part of the pleading and .of the record proper, and that ruling was adhered to on motion for .rehearing, calling attention to the line of cases (principally cases at law) holding that an exhibit was no part of the pleading or the record proper. Roden v. Helm, 192 Mo. 90. (6) Where the court has jurisdiction of the subject-matter, and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error, and prohibition is not the proper remedy. Hawland v. Railroad, 134 Mo. 479; Troegel v. Judge, 35 La. Ann. 1164; Railroad Co. v. Robers, 52 W. Va. 450; Works on Courts and Jurisdiction, 634.
   GEAVES, J.

— This is an original proceeding, the purpose of which is to prevent the respondent herein, judge of the circuit court in and for Audrain county, from further proceeding in a cause in said court pending, wherein the Continental Securities Company and Clarence H. Venner are plaintiffs and the relators in this case are defendants.

In the application for onr writ the relators have set ont in full the bill in equity in the circuit court case, as well as the different attempts at service upon the several defendants in the bill named. The sufficiency of the bill itself to confer jurisdiction upon the circuit court is challenged, as is also the sufficiency of the service upon the respective defendants in that case. The bill pending in the circuit court is exceedingly voluminous, but counsel for relators have given us as succinct and fair an analysis of it as we could make, and their analysis, not being criticized by counsel on the other side, we adopt. It thus reads:

“The petition states:
“(a) That the Continental Securities Company (herein called the Continental Company) is a New Jersey corporation, with its place of business in the city of Jersey City in that State; that Yenner is a citizen and resident of the State of New York; that the Wabash Railroad Company (herein called the Wabash Company) is a corporation consolidated under the laws of Ohio, Illinois, Indiana, Michigan and Missouri, with its place of business in the city of St. Louis; that the Bowling Green Trust Company (herein called the Bowling Company), the Equitable Trust Company (herein called the Equitable Company) and the Metropolitan Trust Company (herein called the Metropolitan Company) are corporations of the State of New York, with their places of business in the city of New York; that the St. Louis, Iron Mountain & Southern Railway Company (herein called the Iron Mountain Company) is a Missouri corporation, with its place of business in the city of St. Louis.
“ (b) That the Wabash Company on July 1, 1889, executed a mortgage (herein called the debenture mortgage) whereby it conveyed to the Mercantile Company as trustee (we quote from the petition) £certain lines of railroad, roadbed, rolling stock, rights of way and other property, both real and personal, as in said mortgage more particularly described, a large part of which said real property, and much of said personal property then were and are now situated in Missouri,’ to secure debenture A bonds of the par value of $3,500,000, and debenture B bonds of the par value of $26,500,000, to bear interest at six per cent, but to be paid only out of the net income of the company as defined by the mortgage; that the debenture bonds, debenture mortgage, and articles of consolidation, and by-laws of the Wabash Company provided that the holders of the debenture bonds shall have the right to elect one-half of the highest even number of directors of the Wabash Company and that the stockholders shall have the right to elect the other half; that the directors thus elected shall have the right to elect an additional director, who shall become president of the company, but in the event that they fail to agree, the Mercantile Company shall select the additional director, who shall become president of the company, and that the holders of the debenture bonds shall have the right to cast one vote for each $100 par value of bonds held by them at all stockholders ’ meetings.. of the Wabash Company.
“(e) That during the year 1896 to 1899, inclusive, the net income from the property covered by the debenture mortgage applicable to the payment of interest on the debenture bonds, was more than-$600,000, gnd since 1899 has been several million dollars ; that one per cent was paid on debenture A bonds in the year 1896, and six per cent in each of the years 1900, 1901, 1902, 1903, and three per cent in the year 1904; that prior to July 1, 1907, no interest had been paid on debenture B bonds.
“(e) That on the 29th day of June, 1906, the board of directors of the Wabash Company unanimously adopted a resolution authorizing the,creation of an issue of fifty-year four per cent refunding gold bonds, to not exceed in amount $200,000,000, to be secured by a mortgage on its property, for the purpose of making provision to refund and retire all of its outstanding indebtedness and obligations secured by lien, including tbe exchange of debenture bonds.
“ (f) That on August 16, 1906, the Wabash Railroad Company by order of its board of directors, called a special meeting of its stockholders and debenture bondholders, to be held at Toledo, Ohio, on the 22d day of October, 1906, for the following purposes: To obtain authority to create said issue of four per cent fifty-year refunding gold bonds; to increase the preferred capital stock by the amount of $16,500,000; to increase the. common capital stock by the amount of $81,500,000; to authorize the issue of preferred and common stock not exceeding $16,500,000 of each, as might be necessary to.effect the exchange hereinafter mentioned of the debenture bonds; to authorize the exchange of debenture bonds for new bonds and preferred and common stock, upon conditions authorized and approved by the board of directors, and to authorize all necessary action in the premises by the board of directors and the officers of the company.
“(g) That pursuant to said call, the majority in amount of the stockholders and debenture bondholders of the Wabash Company at special meeting, approved and authorized the carrying out of said plan for the exchange of the debenture bonds.
“(h) That on the 30th day of October, 1906, the committee of the holders of debenture bonds advertised a plan for the exchange of debenture bonds for new four per cent bonds, and preferred and common stock of the Wabash Company, as follows: For each thousand dollars par value of debenture A bonds, $795 of new bonds, $580 preferred stock, ajid $580 common stock; and for each one thousand dollars par value debenture B bonds, $750 of new four per cent bonds, $520 of preferred common stock, and $520 of common stock of the "Wabasb Company.
“(i) That on the 27th day of December, 1906, the Wabash Company, having declared the plan for the exchange of new stock and bonds for debenture bonds operative, executed its first refunding and extension mortgage (herein called the refunding mortgage) to the Bowling Company, to secure said issue of $200,000,000 fifty-year four per cent refunding gold bonds (herein called new bonds); that said mortgage authorized the issue of $21,862,500 of new bonds, or so much thereof as might be necessary from time to time to give in exchange for debenture bonds which might be offered for exchange, the exchange to be effected by giving new bonds and preferred and common, stock for debenture bonds, as hereinbefore stated; that the debenture bonds so exchanged (herein called exchange debenture bonds) should be marked ‘not negotiable’ and held by the Bowling Company ‘uncancelled as purchaser, without extinguishment or impairment of right or lien, as a part of the mortgaged premises and trust estate, and as additional security for the payment of the bonds hereby secured’ until the exchange of all the debenture bonds should be effected, whereupon on the request of the Wabash Company it should deliver all said bonds to the Wabash Company in order to secure the satisfaction and discharge of the debénture mortgage; that until all debenture bonds had been exchanged, the Bowling Company' should retain sole custody of said bonds, and exercise all rights attached to them as the owner of them, provided the sum received by the Bowling Company as interest on the exchanged debenture bonds should until default in the payment of interest on the new bonds, be paid to the Wabash Company; that in the absence of default of the new bonds,'the Bowling Company should execute to such persons as might be named by the holders of a majority of the stock of the Wabash Company at their annual meeting, proxies entitling them to vote on the exchanged debenture bonds.
“ (j) That on April 1, 1909, the Bowling Company merged and consolidated with the Equitable Company, whereby the Equitable Company succeeded to the assets, business, trust and affairs of the Bowling Company.
“(k) That the laws of Michigan provided that the capital stock of corporations may be paid for either in cash or in real or personal property, and if paid for in property, an itemized description thereof shall be annexed to the articles of association, together with the value of each item taken; that the laws of Illinois provided that no corporation shall issue any stock or bonds, except for money, labor or property actually received and applied to the purpose for which such corporation was organized, and that all stock dividends and other fictitious increase of capital stock or indebtedness of any corporation, shall be void.
“(1) That on January 20, 1909, there had been $28,054,000 par value debenture bonds exchanged for new bonds, and common preferred stock, in accordance with said plan, and that the Wabash Company had issued in effecting such exchange without other consideration $14,770,840 of preferred stock and a like amount of common stock.
“ (m) That George J. Gould and Edwin Gould ‘were prior to the carrying out of said plan, owners of a large amount, the exact number being unknown to your orators, of said debenture bonds, which were afterwards exchanged and paid under said plan, and are now, as your orators are informed and believe, owners of the new stock and bonds which were so exchanged for said debenture bonds. That the Iron Mountain Company was, prior to the carrying out of said plan, the owner of $5,435,000 par value debenture B bonds, which were exchanged under said plan; that prior to said exchange said bonds were pledged to the Metropolitan Company as collateral security up to the date of such exchange; that the Iron Mountain Company is the owner of new bonds and preferred and common stock given in exchange for its debenture bonds, and that said new securities are now held as collateral security by the Metropolitan Company.’
“ (n) ‘That said new bonds and preferred and common stock which were exchanged for said debenture bonds as aforesaid, were issued to, and are now held by a great number of persons other than the above named defendants, who' are unknown to your orators, and who are, as your orators are informed and believe, so numerous and so widespread (most of said persons being without the jurisdiction of this court) that they cannot be joined as defendants in this, your orator’s petition, without manifest inconvenience and delay.’
“(o) That in the month of August, 1905, a suit was commenced in the circuit court of the United States for the Eastern District of Missouri, Eastern Division, by the Mercantile Company, the trustee in the debenture mortgage against the Wabash Company, for an accounting of the net income secured and agreed in said mortgage to be paid as and for interest on the debenture bonds; that said suit had not been brought to final hearing, and no testimony has been taken therein sincó the summer of 1906.
“The prayers ask for the following relief:
“1. That the refunding mortgage be decreed a subsequent lien to the lien of the debenture mortgage.
“2. That the exchanged debenture bonds be decreed paid and discharged.
“3. That the' pledge of the Bowling Company of the exchanged debenture bonds be adjudged void and that the Bowling Company and the Equitable Company be ordered to surrender them to •the Wabash Company for cancellation.
“4. That the Wabash Company be restrained from paying out of its net income and profits derived from the lines of railroad covered by the debenture mortgage any interest on the new bonds issued under the refunding mortgage until the interest on the unexchanged debenture bonds since July 1, 1906, shall have been paid and until final determination of the suit pending in the circuit court of the United States for the Eastern District of Missouri, and in the event that suit shall result in favor of the Mercantile Company, then until the judgment therein rendered shall have been discharged.
“5. That the preferred capital stock of the Wabash Company issued and used in exchange for debenture bonds be declared void.
“6. That the common stock of the Wabash Company over and above the sum of $7,626,670, which had been issued and used in exchange for debenture bonds be declared void.
“7. That the Wabash Company be enjoined from paying to the Bowling Company or its successor, the Equitable Company, and interest upon the exchanged debenture bonds and from receiving from either of said companies, except under the order of the court, any such interest which has heretofore been or may hereafter be paid by the Wabash Company.
“8. That the Bowling Company, the Equitable Company, and the Wabash Company be enjoined from voting upon the exchange debenture bonds at any meeting of the stockholders or debenture bondholders or both of the Wabash Company, and that the Wabash Company be restrained from permitting any vote to be cast at any such meeting with respect to any of the exchange debenture bonds or upon any of the increased preferred capital stock of the company.
, “9. That the refunding mortgage be decreed void so far as it provides for the pledge of the exchanged debenture bonds for any purpose whatsoever.
“10. That the Wabash Company be enjoined from delivering any more new bonds or increasing capital stock in exchange for debenture bonds.
“11. That a receiver be appointed for the property, assets and franchise of the Wabash Company, unless otherwise adequate relief be accorded plaintiffs.
“And in default of the relief above prayed for:
“12. That the plan for the issue and delivery of the new bonds and preferred and common stock in exchange for debenture bonds and the pledge to the Bowling Company or Equitable Company for exchanged debenture bonds be decreed void and that all said new bonds and preferred and common stock be decreed void and that the Wabash Company, the Bowling Company and the Equitable Company be ordered to re-exchange the exchanged debenture bonds with the holders of the new bonds and preferred and common stock of the Wabash Company.”

The circuit court’s petition covers forty-seven printed pages, but the contents of it, as well as its prayer, is fairly covered by the above. In the application for the writ several grounds are urged against the jurisdiction of the circuit court, and such of these as may be necessary we will note in the course of the opinion, for to this petition we must go for the facts of the case.

This court granted the usual preliminary rule in such cases, and the respondent instead of filing a return, files a demurrer challenging the sufficiency of relators’ petition for the writ. The grounds of the demurrer are:

“1. That said petition does not state facts sufficient to constitute a cause of action or authorize the court to grant any relief to relators.
“2. There is a defect of parties occupying the attitude of relators.
“3. The parties joined as relators' are not necessary or proper parties.”

This demurrer makes the facts stated in the petition for the writ the facts of the case. This sufficiently outlines the controversy.

I. The issues in this case are made by the petition for the writ of prohibition and respondent’s demurrer. The demurrer admits all well pleaded facts in the petition stated, and if these facts, thus admitted show relators’ right to the writ the demurrer should be overruled, and the writ made permanent. In other words no further pleading’s will be tolerated. Such seems to be the rule of this court, as well as the general rule. [Trainer v. Porter, 45 Mo. 336; State v. Murphy, 132 Mo. 382; 16 Ency. Pl. & Prac., 1140.] In the latter authority it is said: “The right to the writ is usually determined upon the demurrer or answer of the defendant to the petition, or upon motion to quash the rule or preliminary writ. A demurrer to the petition admits the truth of the facts suggested, and if it is not well taken the writ will be issued upon its being overruled.”

In the Trainer case, supra, we said: “The petition is demurred to, and the facts therein recited thereby admitted to be true. The question is therefore presented whether the petition, upon its face, makes a case which will justify this court in prohibiting the further prosecution of the mandamus proceedings complained of; and this raises the further inquiry whether the circuit court has jurisdiction of the cause pending before it — namely, the mandamus suit.”

The facts of the petition being admitted by the demurrer, we should grant the writ, if these facts justify such course. By facts we do not mean conclusions of law. The allegation in a petition of a mere eonclnsion of law raises no issue. [Mallinckrodt v. Nemnich, 169 Mo. 397.]

We have before us at least two well pleaded facts i. e., (1) the petition or bill in the case pending nisi, and (2) the divers returns made in the attempted services of process. The petition itself may show want, of jurisdiction in a cause. [State ex rel. Hunt v. Grimm, 243 Mo. 667.] Likewise a failure to show service of process may show absence of jurisdiction. [Priest v. Capitain, 236 Mo. 446.] However, if the petition or bill in equity upon its face discloses that the trial court has no jurisdiction of the • particular cause, then we need go no further. This in view, we take the bill filed in the circuit court next.

TI. Does this bill disclose a cause of action over which the circuit court of Audrain county can take-cognizance? That such court has jurisdiction of such class of cases is not sufficient. The question is, does the petition disclose want of jurisdiction in the particular case? In State ex rel. v. Grimm, supra, we had a petition which sought to cancel a deed for fraud. Of the general class the circuit court had jurisdiction. In other words in a proper case the circuit court of the city of St. Louis had jurisdiction to hear and determine a case to cancel a deed for fraud in the procurement of the deed, but in the particular case discussed in the Grimm case we said the court did not have jurisdiction, because the bill disclosed that the land mentioned in the deed was in the State of Virginia and not in Missouri. So in many cases a given court may have jurisdiction of a given class of cases, but not of the particular case, although in a general way such case belongs to the given class.

To get at the right of the circuit court of Audrain county to hear and determine the cause there pending, we can prbceed best by a process of elimination. We shall thus take np the bill.

By a section of the prayer to the bill it is sought to have the circuit court declare the refunding bond mortgage a subsequent and inferior lien to the debenture bond mortgage, which latter secures the bonds held by the plaintiffs. If this were a real question in the case, and if the petition or bill described the railroad property as being in Audrain county (a much mooted matter), it might be said that, with proper service, the circuit court would have jurisdiction: We cannot be guided by the prayer in determining'what is in fact sought by the bill. As said before this bill is voluminous and pleads in great detail the facts. Prom those facts it does not appear that the superiority of the debenture mortgage lien is in fact a question of dispute. In their bill the plaintiffs' nisi plead and set out portions of the refunding mortgage, and these conclusively show that this second instrument, executed years after the debenture mortgage, in terms recognizes the superior lien, of the older mortgage. So the pleading shows, not only that the debenture mortgage is in fact and law a prior lien by reason of prior execution and record, but further by express recognition of such priority of lien in the junior mortgage itself. If the pleading upon its face shows that the debenture mortgage is a prior lien, it also shows the converse, i. e., that the refunding mortgage is the junior mortgage, and that it is so declared upon the face of the instrument itself. Nor is there any averment in the bill that any person has ever given it a different construction. Upon this point the case presented is this: A. gives B. a deed of trust on his land in 1895, then in 1906 A. gives to C. a deed of trust on the same land, and states in the latter that the former has been given and is yet unreleased. Can B. without more than thus merely pleading the two deeds of trust, say to C., “I want a court to say whether or not your lien is junior to mine?” We think not. When B. pleads facts which show that G’s deed of trust is in fact junior, and pleads no other facts or reasons why equity should be invoked in his behalf, he is without standing. It is evident that the prayer in this petition asking to have the refunding mortgage declared a junior lien is an attempt to foist jurisdiction upon a court which perhaps does not have jurisdiction of the cause by reason of the other matter pleaded. It has the appearance of being a “saving clause” in the event that others fail. If the facts pleaded are true, and they evidently are, because the two written instruments are set out in substance and parts of them in haec verba, then the prayer for this relief is not one made in good faith. Why ask to have a thing done, when you have stated facts which show that the thing has already been done? Why ask the court to do á thing when you state facts which show that the parties themselves have done for you that very thing? Jurisdiction cannot be foisted upon a court in that manner. Had this bill alleged anything upon the part of defendants indicating that they did not and had not recognized the refunding mortgage as a junior lien, then the question might be different, but such method of attempting to give jurisdiction to a court in order to have determined other matters over which the court might not have jurisdiction but for this question, cannot be countenanced. Going back to the supposed case of A., B. and C., suppose C. was not within the jurisdiction of the court; suppose B. in order to get C. before the court upon other matters entirely foreign to the jurisdiction of the particular court, brought his bill and ’ with the foreign matters alleged the giving of the two deeds of trust mentioned above and that the latter one stated that it was subject to the former, and upon the question of property made no further statement: can it be said that the court had bona-fide acquired jurisdiction of the whole case? We think not. So that unless there is something more than this question to confer jurisdiction, we should hold that there was absence of jurisdiction.

. Other questions we take next.

III. Eliminating the idea that the suit is one to determine precedence as between two mortgages, which we must, under the admissions in the bill, then what is the purpose of the bill, as determined from the facts pleaded, and not from the prayer? To my mind the real, and in fact the only object, of the.suit is to obtain a decree adjudging the exchanged debenture bonds now held, by the Bowling Green Trust Company or its successors in trust, in New York, have been paid. There were $30,000,000 of these debenture bonds. Over $28,000,000 of them have been exchanged under the terms of the refunding mortgage and are held in Newr York under the terms of that mortgage, or the trust clause therein mentioned. Plaintiffs own $50,000 of the unexchanged debenture bonds. All they say in their bill as to voting rights, payment of interest, unlawful exchange of refunding bonds and stocks, is centered around the idea that these exchanged bonds should be declared canceled. There are so many conflicts in the bill that it is hard to determine just what is meant by it. They say that the bonds and stock given in exchange for the debenture bonds now held in trust were unlawfully issued and therefore void, yet they say such alleged worthless paper paid in full the debenture bonds and they should be canceled. But I conclude from the whole bill that the real object and purpose of the bill is to cancel these debenture bonds of over $28,000,000 in value, to the end that plaintiffs and others holding the remaining interest of less than $2,000,000 of these debenture bonds would have the full power to elect six directors of the company, under the voting agreement in the debenture mortgage, and not only so, but to tbe end that, by the cancellation of tbe $28,000,000 debenture bonds, as paid, they would have a first lien securing only $2,000,000 of debt instead of $30,000,000 of debt. If tbis is tbe purpose of tbe bill, and we think it is, then bas tbe circuit court jurisdiction?

Tbis requires us to go to tbe residence and service of tbe defendants. Tbe mortgagor and maker of tbe bonds is a resident of Missouri, and for tbis point we will say bas been properly served. For tbis purr pose admit due service on tbe St. Louis, Iron Mountain & Southern Railway Co., a Missouri corporation. These are tbe only two we have with personal service. Tbe interest of tbe mortgagor can be gathered from a mere statement of tbe relation. Tbe Iron Mountain Railway Company, supra, bas no interest further than as a bolder of new stock and bonds issued in lieu of tbe debenture bonds which it held, and its interest outlined in tbe trust clause of tbe refunding mortgage is fully set out in our statement. Tbe question then is, can a Missouri court proceed to cancel bonds held in New York under a trust agreement, when tbe parties plaintiff and most of tbe heavily interested defendants, live in New York, and have not been personally served in tbe proceeding? And in addition can and should such court be permitted to proceed when in addition to tbe foregoing disclosure, it is further announced in tbe bill “that said new bonds and preferred and common stock which were exchanged for said debenture bonds as aforesaid were issued to and are now held by a great number of persons other than tbe above-named defendants, who are unknown to your orators, and who are, as your orators are informed and believe, so numerous and wide spread (most of said persons being without the jurisdiction of this court) that they cannot be joined as defendants in this your orator’s petition without manifest inconvenience and delay.”

Now, when it is remembered that the bill avers that, by the terms of the refunding mortgage and the trust agreement therein contained, all holders of new bonds and stocks had an interest in the surrendered debenture bonds, until such time as they might all be surrendered, because they were held uncanceled as a pledge and further security for the new obligations, then it is apparent that the judgment to be rendered in Missouri is a judgment touching personal property in New York, held in trust, for the benefit of parties not before the court. The question then is, what is the character of this suit? Conceding it to be an action to cancel certain debenture bonds held in New York under a trust agreement to be performed in New York, as I think we must, then what? 'To my mind, it is clear our circuit courts are without jurisdiction. The property is not here, neither are the principal parties in interest within the jurisdiction of the court. Can a Missouri circuit court decree the cancellation of bonds held in New York, which bonds are held by a trust agreement to be performed in New York? We think not. Can such court cancel these bonds when upon the face of the petition many parties interested therein are not before the court even by publication or substituted service? We think not. If the property were here the question would be different. But the property sought to be reached is in New York and the most of the parties interested are there, or at least not in Missouri. In such case service by publication or other substituted service will not avail. The property not being here no jurisdiction of the person can be “obtained by service of this character.

In Pennoyer v. Neff, 95 U. S. l. c. 723, it is said: “It is in virtue of the State’s jurisdiction over the property of the nonresident situated within its limits that its tribunals can inquire into that nonresident’s obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the nonresident have no property in the State, there is nothing upon which the tribunals can adjudicate.

“These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of eminent judges, and have been carried into adjudications in numerous cases.”

So, too, has said this court in Carr v. Lewis Coal Company, 96 Mo. l. c. 155: “ As a general rule, to which this case forms no exception, it is needless to say that in order directly to subject particular property to the judgment or decree of any court, the suit brought for that purpose must be brought where- the thing is. [Wells on Jur., Sec. 117; Latrope v. Hayward, 13 Fla. 190; Austin v. Bodley, 4 T. B. Mon. 434; Story Confl. Laws, Sec. 539; Currington v. Brents, 1 McL. 167.]”

So if it be true that the purpose of this bill is to reach property in New York, as we think it is, then there is no jurisdiction in the circuit court of Audrain county.

IV. But independent of all this, there is another question which precludes the jurisdiction of the circuit court. And this, too, although we are in error in previous paragraphs. Plaintiffs’ bill in paragraph 23 avers as follows:

“In or about the month of August, 1905, a suit was commenced in the circuit court of the United States for the Eastern District of Missouri, Eastérn Division, by the Mercantile Trust Company (a corporation of New York), the trustee under the'said debenture mortgage, against the Wabash Railroad Company, for an accounting of the net income secured by and agreed, in said mortgage to be paid, as and for interest on the debenture bonds, but that said suit has never been brought to final hearing, and no testimony has been taken therein since the summer of 1906.”

• There is then a conclusion of the pleader to the effect that the suit will not be prosecuted because the Bowling -Green Trust Company held and voted this surrendered stock and will hold and vote it in the interest of the Wabash Railroad Company, but this is a mere conclusion. The Mercantile Trust Company (of New York) is the trustee in the debenture mortgage under which plaintiffs claim. There is no charge in the bill that' this trustee has refused to act, or has ever been called upon to act for the protection of these plaintiffs and others similarly situated. It does appear, however, that it has acted and brought a suit in the federal court to have the right of all claimants under the debenture mortgage adjudicated. In that suit every question in plaintiffs’ voluminous bill' in our circuit court could by amended bill (if amendment is required) be adjudicated. The Federal court is now possessed of the cause relating to the rights of the plaintiffs- and all other parties under this first mortgage, and having such jurisdiction can fully protect all th¿ rights of the plaintiffs. Nothing in this bill shows that the plaintiffs have ever demanded of the Mercantile Trust Company, their trustee, to go forward with that suit, or that it had declined to go forward — we have only a naked conclusion that through the Bowling Green Trust Company the Wabash Railroad is in control of the suit. This is not sufficient to oust the jurisdiction of the subject-matter now reposed in the federal court. It is clear that these plaintiffs can have no rights except such as accrue to them under the debenture bond mortgage, and all these rights can be adjudicated in the court now having jurisdiction of that suit. The plaintiff in this action in the Federal court is the trustee or representative of the plaintiffs in the action in our circuit court. The debenture mortgage confers the right to bring suits upon the trustee, and this appears from plaintiffs’ bill in this case. Where there is such a provision, the trustee alone can sue, until such time as the trustee refuses to act. When he refuses to act the bondholders may then sue, but he must aver the refusal of the trustee to sue, before he has any standing in court. [3 Cook on Corporations, Sec. 826.] So we have in the bill before us a bondholder suing without any averment that the trustee in his mortgage has refused to sue, and a bill in which it is further averred that the trustee has in fact sued, and such suit is pending in another jurisdiction. Under such circumstances can our circuit court proceed? We think not. The question was so fully covered by Woodson, J., in the recent case of State ex rel. Sullivan et al. v. Reynolds, 209 Mo. 161, that we close with the mere citation of that case. Other questions need not be discussed.

The permanent writ of prohibition should be granted, and it is so ordered.

All concur except Ferriss, J., absent; Brown, J., concurs only in result.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    THE STATE ex rel. ARCHIBALD M. EVANS v. ELBRIDGE J. BROADDUS et al., Judges of Kansas City Court of Appeals.
    In Banc,
    July 2, 1912.
    1. SUPREME COURT: Superintending Control: Certiorari. The right and duty of the Supreme Court, as the repository of final, superintending and supervisory judicial control over other courts, to bring up their records by certiorari and to set aside and quash orders and judgments whether outside or in excess of their jurisdiction, .ought not to he questioned, since it is a power plainly lodged in the Constitution, and its exercise is necessary and useful in establishing uniformity in the general law.
    2. CERTIORARI': Office. Where an appeal or writ of error does not lie, certiorari does not go as of right, hut it goes in such cases in order that proferí of the challenged record he made, to be searched for jurisdictional defects; that is, orders, judgments and parts of judgments outside of or in excess of the jurisdiction of the subordinate court making or rendering them. It takes the record as it is, excluding the evidence which relates to the merits only and tending to ¡show that the court erred in its judgment.
    3. -: Jurisdiction: Conflict: Habeas Corpus Interrupted and Thwarted by Mandamus. The Court of Appeals has no jurisdiction to compel by mandamus the sheriff to execute the commitment warrant and place in jail a witness who has been committed by a notary public for contempt for refusal to an'swer questions, where such witness has previously filed in the circuit court his petition for a writ of habeas corpus and that petition remains undecided and is sub judice at the time the Court of Appeals issues its said writ of mandamus. Such an attempted interruption with the habeas corpus proceeding would be irregular and unwarranted, for that in effect is to try out and dispose of the merits of the habeas corpus still pending.
    4. -: When Jurisdiction Commences: On Filing of Petition. An action is begun in a court of record when the petition is filed. When a witness, who has been committed by a notary public for refusing to answer questions, files his petition for habeas corpus in the circuit, court, having for its purpose a test of the validity of the contempt proceedings and the commitment under which he is held, his 'suit is commenced.
    5. -: -: -: Subverted by Mandamus from Higher Court. And thereafter the Court of Appeals has no jurisdiction, while that petition for habeas corpus is undecided, to issue its writ of mandamus compelling the sheriff to execute the notary’s warrant of commitment and lodge the witness in jail until he testifies.
    6. -: -: -: -: Delaying Action: No Bail Exacted. Nor does the fact that the circuit court delayed action after issuing its writ of mandamus until the Court of Appeals had taken action on its writ of mandamus, impair the right of thé prisoner to have his habeas corpus suit tried in a court having jurisdiction of that action (at least to issue the writ); nor does the informality of the circuit court in letting the prisoner go ad interim without bail affect the question of jurisdiction.
    7. HABEAS CORPUS: Bulwark of Personal Liberty: Duty of Courts: Suspension of All Other Writs. It would be of consequence, deep, wide and pernicious, to abate by one jot or tittle the sanctity or power of the ancient office of the writ of habeas corpus. It is seemly for courts of justice to well see to it that the flame of the lamp of personal liberty is kept alive, well trimmed and brightly burning. The authority of all other writs must yield to the authority of the writ of habeas corpus. Indeed (at least, in times of peace) every human power must give way to it, and no prison door is stout enough to stand in its way. Where a writ of habeas corpus is issued, the original writ of commitment is suspended.
    8. .-: Deposition: Power to Compel Witness to Reveal Names of Other Witnesses. A notary public, at the taking of a deposition by a plaintiff in a personal injury case against a street railway company, has no power to compel the claim agent of the company to tell the names of those persons he has learned the company intends to use or might use as witnesses, or who have told him they had witnessed the accident.
    Certiorari.
    Judgment oe Court oe Appeals quashed.

      Brown é Eastin for relator.
    (1) Tlie respondents were without authority to interrupt by mandamus the right of relator to have the cause of his detention inquired into by habeas corpus. The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. Ex parte Watkins, 28 U. S. 193; People v. Liscomb, 60 N. Y. 559; In re Dill, 32 Kan. 668. The writ of habeas corpus is an immediate remedy for every illegal imprisonment. Comm. v. Brower, 9 Kulp. (Pa.) 317; Comm. v. Lecky, 1 Watts, 67; People v. Wells, 68 N. Y. Supp. 58; 2 Story (5 Ed.), Sec. 1339. The writ of habeas corpus is a high prerogative writ given by .the common law and of authority paramount to all other writs. By the production of the prisoner on a writ of habeas corpus the.court acquires absolute jurisdiction of the person and the original cause of commitment is suspended until the cause is disposed of. The custody is not on the original warrant, but is under the authority of the writ of habeas corpus. Haley’s Case, 1 Mod. 195; Tazacharly v. Baldo, 1 Salk. 352; Matson v. Swanson, 131 Ill. 255; State v. Sparks, 27 Tex. 705; Rex v. Bethel, 5 Mod. 22; Barth v. Clise, 12 Wall. (U. S.) 401; In re Kaine, 14 How. (U. S.) 103; Bacon’s Abridgment, Habeas Corpus, B., 13; Hurd on Habeas Corpus (2 Ed.) 324; Matson v. Swanson, 131 Ill. 255. In "the present ease the authority of the sheriff for arresting Evans was the commitment of the notary. The issuance of the writ of habeas corpus — whether this be considered to have been done on June 12 or on June 24 — supplanted the commitment, and thereafter the sheriff held his prisoner under the direction of the court by virtue of the habeas corpus proceeding. The commitment was so effectually nullified while this proceeding was pending that, had the sheriff attempted to hold or confine the prisoner without an order from the court, his act would have been false imprisonment. Ex parte Jilz, 64 Mo. 210; State ex rel. v. Dobson, 135 Mo. 1. (2) The commitment issued by the notary public was void. The notary adjourned the taking of the testimony before issuing the writ. The adjournment closed the authority of the notary under the notice, and all proceedings subsequent to that order were void. In re Green, 86 Mo. App. 216, 126 Mo. App. 317. (3) The evidence called for by the questions propounded to relator was incompetent and immaterial, and as relator is an attorney at law and the representative of the defendant in the proceeding, the information, even if competent, was privileged when objected to by his principal and client. The testimony could not have been received at the trial of the cause. It was foreign to the subject-matter of the suit, and the questions were evidently asked for a purpose not contemplated by. the litigation. In re Shull, 221 Mo. 623; Ex parte Livingstone, 12 Mo. App. 80; Ex parte Krieger, 7 Mo. App. 367; Matthews v. Railroad, 142 Mo. 669; Tyson v. Loan Assn., 156 Mo. 588.

      Charles C. Crow and John S. Boyer for respondents.
    (1) The Kansas City Court of Appeals has power to issue writs of mandamus. Sec. 12, Art. 6, Constitution. (2) This court has no power to review a decision of the Court of Appeals in a case of which it has jurisdiction, unless the case he certified. The rule has become firmly established in this State. State ex rel v. Smith, 173 Mo. 398, 176 Mo. 90, 188 Mo. 181; State ex rel. v. Broaddus, 207 Mo. 124. The writ of certiorari will not issue from any court, under the common law, unless the court to which the writ is issued is assuming to act without jurisdiction, or acting' in excess of its jurisdiction; and in no case can judicial errors be reviewed by means of this writ,' and even though there be judicial error in this case (which we. most emphatically deny), the rule applies. Cases cited, supra. In this case the alternative writ of mandamus, return of sheriff, intervening petition of Evans, and reply of relator is the record proper. There was a commissioner appointed to take testimony, and upon the return of the commissioner so appointed the judgment was entered upon the facts found by the commissioner. The only record in this case that can be read by this court, even if it has jurisdiction, is the alternative writ, return of sheriff, intervening petition and denial by relator, which made an issue of fact, into which this court certainly will not inquire. State ex rel. v. Wells, 210 Mo. 621; State ex rel. v. Smith, 173 Mo. 414. (3) The writ of habeas .corpus is not so sacred but that it will be.denied where the petitioner does not make the proper showing to obtain the writ. This is a writ of right, but not a writ of course. State ex rel. v. Dobson, 135 Mo. 1. (4) In this case the evidence- called for was relevant, competent and material, for the reason that in any case parties have the right to show on the trial that defendant or plaintiff is concealing the names of or that they are failing to call persons who know the facts in issue; and a party has the .right to prove that plaintiff or defendant has obtained the names of persons wbo know the facts and such testimony is not hearsay. Devoy v. Transit Co., 192 Mo. 220; Greenleaf on Evidence (15 Ed.), Secs. 100-101; Miller v. Crigler, 83 Mo. App. 400; Courtney v. Blackwell, 150 Mo. 245, Syl. 8; 6 Ency. of Ev. 443. (5) It is the duty of the notary to require an answer to questions where privilege is not claimed; the question of the materiality or competency is for the notary, and not the witness o.r his instructor. Ex parte McGee, 18 Mo. 599; Ex parte Gfeller, 178 Mo. 248, Syl. 9; Ex parte Mumford, 57 Mo. 606; Dustin v. Ferrelly, 81 Mo. App. 385. The notary acted in a judicial capacity in requiring Evans to answer questions, and it was the duty of the witness to obey the officer instead of persons interested in concealing the truth. Swink v. Anthony, 96 Mo. App. 424; Gharst v. Transit Co., 115 Mo. App. 408; Larrymore v. Bobb, 114 Mo. 453.
   LAMM, J.

— Original proceeding. Certiorari to quash a record. Respondents, our brethren of the Kansas City Court of Appeals, file return setting forth all the pleas, proceedings, briefs and entries in a certain mandamus suit, and this cause is submitted on respondents ’ motion to quash the writ.. Marshaling the facts, they follow, viz.:

In April, 1911, one Bressman, adjudged of unsound mind, brought suit in the Buchanan Circuit Court through Gibson, his guardian, against the St. Joseph Railway, Light, Heat and Power Company, for damages for'alleged injuries received while a passenger on one of said railway company’s cars. Presently Bressman gave notice, and on June 10, 1911, proceeded, to take the deposition of one Evans (relator in the instant case) before Miss Apple, a notary public. Therein Mr. Brown represented defendant and Mr. Orow, plaintiff. ■ Evans had been claim agent for defendant for several months and had done work in investigating the Bressman suit. He testified that the alleged time of the accident was several years ago; that he had looked for a report of it and had failed to find any; that he did not know the names of the conductor and motorman, had been ■ given no names by the railway company and knew of no effort to find the names of the motorman and conductor; that if a report had been made the company’s claim department, would be the people most likely to know their names; and that he had made no inquiry in that regard from street car men.

From this point on the record may as well tell its own story, viz.:

“Q. Have you learned and do you know the name of any person who was on the car as passenger at that time? A. No, sir. Q. Is there any paper on file in your office showing names of any persons on the car at that time ? A. Not that I know of. Q. Have you looked recently? A. I looked for the report. Q. Did you look for any other paper that would give names of persons on the car? A. No, sir. Q. Have you looked recently? A. No, sir. Q. Who did you find knew about this accident, from your investigation? . . . Q. I will ask if you found any person who was on the car or saw this Mr. Bressman injured? . . . A. No, sir; I do not. Q. Have you talked with anybody or learned the name of any person who was on the car? . . . Q. What do you know? A. Only what I heard. Q. From what — from the result of your investigation and from what you have learned by your investigation, do you know the name of any person that claims to have been on the car at the time of the injury or saw Mr. Bressman injured?
“Mr. Brown: You needn’t tell what anybody claims to know, if you got it by making investigation; that is, if someone told you, you can decline to answer on the ground that all you know is what was told you, and decline to answer.
“Q. Do you decline to answer question? A. Yes, sir. Q. Why do you decline? A. Because it is only hearsay. Q. Is that your only reason for answering? A. Yes, sir.
“Mr. Crow: We will ask that he be compelled to answer questions.
“Mr. Brown: He will decline to answer hearsay, what someone has told him; he will decline to answer.
“Q. You refuse to answer the question as to the names of the persons you have discovered who say they were on the car or saw the injury to Mr. Brass-man do you? A. Decline to give the names, do you mean? Q. Yes, sir; of the people who you learned from your investigation claimed they were on the car or saw the accident? A. Because I wasn’t there and don’t know whether they were there or not.
“Mr. Crow: We ask the notary to instruct him to answer the question.
“Notary: Will you answer the question? A. No.
“Mr. Brown: Bear witness that Mr..Crow is instigator in having attachment issued.
“Further taking of testimony continued until such time as questions can he answered.
“Mr. Brown : I am perfectly willing for Mr. Evans to answer any question and give any fact he knows of his own personal knowledge, but refuse to have Mr. Evans answer any question which he may have heard and to give here as (hearsay) testimony.”

Thereupon at that stage the notary found Evans guilty of contempt in refusing to answer the above questions and made an order and issued a warrant of commitment, each setting forth the facts and directing the sheriff of Buchanan county to confine Evans in the Buchanan common jail until released by the notary “or by .due process of law.” It seems when later in the same day that warrant came into the hands of the sheriff, Evans was not within immediate reach, but that he returned and surrendered to the sheriff on June 12, 1911, and was put under arrest. Presently on that same day he filed in the Buchanan Circuit Court his petition for a writ of habeas corpus. As near as we can make out the sheriff produced his prisoner on that day before Judge Amick. Thereat counsel for Bressman (or the notary) on one side and for Evans on the other appearing, the former objected to issuing the writ, and, the cause being docketed, a discussion sprung ore tenus whether the writ should go. After hearing counsel on that question, the court made the following entry under date of June 12:

“Now here at this day comes A. M. Evans, petitioner herein, by his attorney, and files petition for writ of habeas corpus and comes also Edna Apple, no - tary public, respondent herein, by- her attorney, and comes also the sheriff and produces the prisoner in open court and said application is at this time taken up and presented to the court, and after some progress the further hearing of this cause is continued until 9:30 o’clock tomorrow morning, and the court instructs the sheriff orally in open court not to confine the prisoner in jail.”

We do not find any entry on the nest day. However, the matter remained as it were in fieri, and on June 24, Judge Amick resumed consideration and issued a writ of habeas corpus, over the protest of Bressman’s counsel. On June 26, the sheriff made his return and Judge Amick heard: the cause and took it under advisement where it has been held sub judice to this day, unless disposed of by what we are about to relate.

Going back a little, on June 22, 1911, Bressman applied (without notice so far as shown) to the Kansas City Court of Appeals for a writ of mandamus to compel Theisen, sheriff, to execute the notary’s warrant of commitment and put Evans in jail until he testified. An alternative writ issued on the same day citing the sheriff to show cause. It was made returnable June 28, 1911, and was served on a date dark. On the return day Evans filed an intervening petition narrating the facts hereinbefore stated anent the pendency of a habeas corpus proceeding in the Buchanan Circuit Court to test the legality of the notarial proceeding and commitment for contempt, with dates, entries and orders made in that court in that behalf as hereinbefore set down. He went further and suggested that he was an attorney at law and that the evidence elicited at the notarial hearing was not only hearsay, but was procured by him in his capacity as claims attorney for defendant in the damage suit and pleaded other facts not material here.

Theisen, sheriff, filed his return setting up the facts of the pendency of a habeas corpus proceeding and the same entries, dates and orders referred to in Evans’s intervening petition. On the return day such proceedings and hearing were had as resulted in the appointment of William D. Rusk, Esq., special commissioner, to take testimony and report findings of fact. Subsequently on September 30, Mr. Rusk made his report finding the questions and answers before the notary as we have set them down, the arrest of Evans, the application for a writ of habeas corpus on June 12, etc., as heretofore stated. He also found that Evans had not been put in jail under the commitment, but had been at large ever since the order of the circuit court on June 12, 1911. Presently the Kansas City Court of Appeals proceeded to judgment and handed down an opinion in that behalf, wherein it held that the questions were proper and were due to be answered, that diere was a proper finding of contempt, a proper comrh'rrrrt and ihat the sheriff should obey the -warrant notwithstanding the pendency of the habeas corpus proceeding in the Bnchanan Circuit' Court. The record shows the habeas corpus record and proceeding were not.brought up by a certiorari to the Kansas City Court of Appeals before the judgment there. So, the petition for habeas corpus was not before that court, therefore is not certified here. But, otherwise, that court had before it all the facts relating to the habeas corpus as they happened, nisi, in their true chronological order. On those facts that court held it had acquired prior jurisdiction by virtue of its alternative writ of mandamus, and on that phase of the case, among other pronouncements, delivered the following:

“It must be admitted that had the circuit court discharged the witness on the hearing of the writ of habeas corpus that would have been the end of the matter, and the writ issued in this case would have been unavailing, notwithstanding the action of the court would have been erroneous. But that court, has not seen fit to act upon the writ, but deferred action, we presume, because this court had prior jurisdiction in the matter. Where one court has competent jurisdiction of the person and is proceeding to exercise it, it would be a great outrage upon the administration of justice if a court of equal or inferior jurisdiction should by virtue of the writ of habeas corpus seek to override the jurisdiction of the former by discharging the person, and thus annulling its writs and processes and rendering abortive any judgment it might lawfully render. Should we hold that the action of the circuit court in issuing the writ of habeas corpus was a harto any other or further proceeding in this case it would in effect be to hold that the jurisdiction of this court was at an end, and that, an inferior court by such means could oust this court of a jurisdiction conferred by the Constitution. To prevent such an anomalous condition, this court has the power to issue a certiorari and have a writ of habeas corpus brought to this court, and by such means bring the whole question up for its judgment. [State ex rel. Walker v. Dobson, 135 Mo. 1.] But, as the Buchanan Circuit Court seems to be impressed with the anomaly of the situation and has wisely refrained from final action on the writ until this court passes upon the question, we see no necessity for doing so.”

The upshot was an absolute writ of mandamus was ordered directing the sheriff to execute the notarial commitment, Bressman to give a new notice to take depositions and the sheriff to produce Evans before the notary at that time to answer the questions.

Presently, failing to get a rehearing, Evans applied here for (and got) a writ of certiorari to bring up the record, and respondents made .return, sufficient of which already appears, and followed that with a motion to quash the writ, as said. The petition for certiorari need not be reproduced. It was sufficient to raise all points presented to be ruled. The motion to quash our writ is grounded on six specifications. First, that the writ was improvidently issued. Second, that this court had no jurisdiction to grant the relief prayed. The third, fourth, fifth and sixth are but amplifications of the second, to the effect that the Kansas City Court of Appeals has plenary jurisdiction; that its jurisdiction is not subject to review in this court; that the decision in that court was unanimous and therefore final, absent a compliance (as here) with the method pointed out in Sec. 6, of the 1884 Amendment of the Constitution (R. S. 1909', p. 101), providing for a certificate from a member of that court that the decision was contrary to certain prior decisions of this court or of some other court of appeals.

We will formulate vital propositions in our own way, and othe^ pertinent facts will appear in the opinion.

I. Of the jurisdiction of the Supreme Court (and herein of the office of the writ of certiorari).

(a) At this late day the right and duty of this court, as the repository of final, superintending and supervising judicial power over other courts, to bring up their records by certiorari and set aside and quash orders and judgments either outside or in excess of their jurisdiction, ought not in reason to be questioned. It is a power well and plainly lodged in the Constitution. [Sec. 8, Amendment of 1884, R. S. 1909, p. 102; Sec. 3, Art. 6, Constitution.] It is a necessary and useful power, to the end that there may be uniformity in the general law — i. e., one rule of law in all courts of the State and that all should harmoniously move in a prescribed and known orbit as near as may be. [State ex rel. Curtis v. Broaddus, 238 Mo. 189.] When the law is uncertain, or when similar cases are ruled by diverse reasons, obedience as has been well said, is miserable.

That the power should be guardedly used with modest gentleness and always with circumspection argues nothing against its proper use. That its use is delicate and liable to abuse argues nothing against its use when its use is called for. What says the precept? To argue against the use of a thing because of the danger of the abuse of the thing is specious but fallacious reasoning.

In so far as the motion to quash the writ is based on our want of jurisdiction it is not well taken.

(b) Where an appeal or writ of error does not lie, as here, certiorari does not go as of right, but it goes in such cases in order that profert of the challenged record be made to be searched for jurisdictional defects — that is, orders, judgments and parts of judgments without (or in excess of) the jurisdiction of the subordinate court making or rendering them. [State ex rel. Scott v. Smith, 176 Mo. 90, State ex re]. Manning v. Smith, 188 Mo. 167; State ex rel. v. Reynolds, 190 Mo. 578.]

Certiorari does not take the place of mandamus to compel the making of a record, hut it takes the record as it finds it, excluding'the mere evidence which can, in the nature of things, relate to the merits only, tending to show, as it does, that the court erred in its judgment. The office of the writ is not to review error of that sort. In this connection it is argued that we may not look into the evidence put in in the mandamus suit. We agree that such is the law of certiorari. [State ex rel. v. Smith, 173 Mo. 414; State ex rel. v. Wells, 210 Mo. 621.] But that contention avails naught here'; for the facts as set forth appear on the face of the record itself. Hence, we disallow the point to respondents.

II. Of the habeas corpus proceeding (and herein of jurisdiction of the Court of Appeals to give judgment therein and of conflicts of jurisdiction).

(a) ■ The judgment of the Court of Appeals runs on the theory that it got jurisdiction of the subject-matter before the jurisdiction of the circuit court attached and that under such circumstances to permit a subordinate court to interpose and override such jurisdiction by discharging the person whose imprisonment the writ of mandamus was aimed at, could not be tolerated. But, with great respect to our learned brethren of that court, we cannot agree to the premise upon which that conclusion is based. This, because: ‘When on June 12, 1911, Evans filed in the circuit court of Buchanan' county his petition to be discharged, we are of opinion his suit was commenced having for its purpose a test of the validity of the contempt proceedings and the commitment under which he was held.

It is argued that the habeas corpus proceeding was not begun and the jurisdiction of the circuit court did not attach until the writ itself was issued, but the point is left unreasoned in respondent’s brief and we are cited to no authority sustaining that view of it. Look at it. The petitioner submitted himself to the jurisdiction of the circuit court by filing his petition. When the sheriff produced his prisoner in court on June 12 without a formal writ, we do not say the writ was waived or could be waived (we reserve that question), but we do say there was lacking nothing but the formal issue of it to complete jurisdiction upon which judgment could go on a hearing. But as it stood at that time, with Bressman’s attorney opposing the issuing of the writ and the prisoner’s attorney demanding one on his petition filed, it cannot be said the circuit court was so entirely without any stage of jurisdiction as to raise a question of comity between an upper and lower court and breed scandal in the administration of justice by going on on June 24 and 26.

Construing Sec. 1756, R. S. 1909, relating to the commencement of actions and institution of suits, it has been held that an action is begun in a court of record when the petition is filed. This, even although summons may not thereafter be issued until the action is barred. [State ex rel. v. Wilson, 216 Mo. 292.] To the same effect are Gosline v. Thompson, 61 Mo. 471; South Missouri Lumber Company v. Wright, 114 Mo. 326; McGrath v. Railroad, 128 Mo. l. c. 9; Ex parte Munford, 57 Mo. 603.

Mark the reasoning of those cases. It is that by filing his petition the party has done all he can do by himself. The issuing of his writ is not in his hands, but in the hands of the clerk and the filing of the petition is tantamount to an order from the party for such writ. By parity of reasoning, the same sensible and liberal doctrine should obtain under the habeas corpus act, when (if the petition be good) the writ must go instanter. [R. S. 1909, Sec. 2444.] When the circuit court, then, after taking time to consider, rounded out its' jurisdiction theretofore acquired by formally issuing its writs on June 26, its act cannot be interpreted to be an unseemly attempt to take jurisdiction away from the. Court of Appeals in this mandamus suit.

There is another view taking color and substance from facts not heretofore stated, viz.:

After opposing the issuing of any writ by the circuit court on Evans’s petition then on file, counsel for Bressman (ignoring the jurisdiction of the circuit court) applied to the Court of Appeals for a writ of mandamus to compel the sheriff to go on and do precisely what the habeas corpus proceeding was intended to forbid; namely, the incarceration of the prisoner. So much is already set down. Now, did they disclose to the Court of Appeals in their petition the pendency of a habeas corpus proceeding in the Buchanan Circuit Court and state that the prisoner had applied for a writ in that behalf; that they had appeared in open court and opposed the issuing of the writ and that the question of issuing one was then in the bosom of the law — in gremio legisf They did not. Contra, they put the case to the Court of Appeals in their petition for mandamus on the sole theory" that the notary had issued her commitment on a judgment for contempt; that it came into the sheriff’s hands in due time and that the officer was without excuse in refusing to obey the commitment — all this after opposing the issuing of the writ of habeas corpus and without complaining to the circuit court of the delay. Evidently their theory was the mistaken one, that the circuit court could not interfere by a writ of habeas corpus on a commitment for contempt, therefore, the Court of Appeals need not be informed of what that court had done or was proceeding to do. Is not some stress due to the foregoing facts in determining the question whether the circuit court was interfering with the jurisdiction of the Court of Appeals, or whether the boot is on the other foot? We think so. If they had disclosed those facts to the Court of Appeals would that court have issued its writ in the first instance? That the circuit court delayed action after issuing its writ until the Court of Appeals spoke on its own, may be referred to seemly deference and judicial etiquette — but what became of the right of the prisoner to have his habeas corpus suit tried in a court having jurisdiction of that action — a jurisdiction (at least to issue the writ) acquired ten days before the Court of Appeals moved in the premises? It may not be lost sight of in the battle of writs. Nor does the informality that the circuit court ad interim let the prisoner go without bail weigh by so much as a feather in the scales on the merits. That was an informality, or detail, subject to correction by the judge and of no significance on the grave propositions here.

(b) We come, then, to the related proposition whether the Court of Appeals acquired jurisdiction over the habeas corpus proceeding by assuming jurisdiction %in the mandamus suit against the sheriff.

We answer that question, no. ' Taking some samples of many (under the maxim, ex uno disces omnes), the writ of habeas corpus has been fondly termed by eminent persons who used no words lightly, ‘ ‘ The dearest birthright of Britons,” “The great bulwark of personal liberty,” “The greatest writ of the common law,” “The great writ of right.” It would be of consequence both deep, wide and pernicious to abate by one jot or tittle the sanctity or power of the ancient office of that writ; for a mere reference thereto brings a proud smile to every student of the history of jurisprudence ; and. it is seemly for those who attend as priests at the altar of justice to well see to it that the flame of the lamp of personal liberty is kept alive, well trimmed and brightly burning. Says Justice Mtt.t.ur, in Ex parte Lange, 85 U. S. 163: ‘ ‘ There is no more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they are embodied.”

Agreeably to the trend of what has been said, our Constitution provides: “That the privilege of the writ of habeas corpus shall never be suspended.” [Sec. 26, Art. 2.] What the Legislature may not do under that interdiction, no court should be bold enough to either dare to do o,r try to do. “The authority of all other writs must yield to the authority of the writ of habeas corpus.” [Church, Hab. Cor. (2 Ed.), p. 139.] Indeed (at least, in times of peace) every human power must give way'to it and no prison door is stout enough to stand in its way. [Ex parte Creasy, 243 Mo. 679; Ex parte Jilz, 64 Mo. l. c. 218.] The studied eulogies paid this writ would be “as sounding brass or a tinkling cymbal” if their significance is to be brushed aside when brought to the test in a concrete case, as if by the tart adage, Fine words butter no parsnips. Therefore, the principles underlying and furthered by this writ are living everyday principles demanding application wherever pertinent.

The premises considered, it results that when the writ of habeas corpus issues, the officer holds his prisoner under that writ and under no other. The original cause of commitment is suspended. “Therefore, from the moment the sheriff receives such writ, the custody of the prisoner will be by virtue thereof, and not under any other writ he may have previously re-’ ceived.” [Matson v. Swanson, 131 Ill. 255.] Agreeable to that doctrine is the reasoning of other eases and authorities cited by relator, ex gr.: In re Kaine, 55 U. S. 103; Barth v. Clise, 79 U. S. 401; 2 Story’s Const. (5 Ed.), Sec. 1339; State v. Sparks, 27 Tex. 705.

It results, further, that the circuit court of Buchanan county, and not the Kansas City Court of Appeals, had jurisdiction to try out the validity of the notarial contempt, proceedings against Evans. This by virtue of the habeas corpus proceeding brought by him in that court. And this is so although under the superintending control of the Kansas City Court of Appeals in order to prevent an unregulated and possible scandalous exercise of jurisdiction by habeas corpus, it, on a proper showing, could have issued its writ of certiorari and brought up the record to be dealt with according to law. That course is not without a notable precedent. [State ex rel. Walker, Attorney-General, v. Dobson, 135 Mo. 1.] Here it did not exercise that constitutional power, but assumed jurisdiction to try out and dispose of the merits of the habeas corpus, pending nisi, under guise of a junior mandamus suit pending before it. We are unable to look on such exercise of jurisdiction over the habeas corpus proceeding otherwise than as irregular and unwarranted. By that! course the prisoner never had the question of his liberty decided as he was entitled to have it decided under the writ of habeas corpus and in a court of competent! jurisdiction where his application for his writ was pending at' the outset and was left pending all the way through. By that course he was denied his day in court by a side stroke or by indirection. The matter was disposed of as a mere by (or collateral) incident in another suit. The applicable maxim is: The court has nothing to do with what is not before it. Nihil habet forum ex scena. Our attention is called to Ex parte Alexander, 163 Mo. App. 615. But that case does not run with this, hence the doctrine of quatuor pedibus currit does not apply.'

III. A question is raised, viz.: Was it in the power of the notary to compel Evans to tell the names of those persons he had learned the railway company intended to use or might use as witnesses, or who had told him they witnessed the accident? We are of the opinion it was not. Such testimony, if elicited, in no conceivable event or emergency could have been read as evidence. The questions were of a class aptly called fishing'. Vide, arguendo, In re Shull, 221 Mo. 623; Matthews v. Railroad, 142 Mo. l. c. 668, et seq.; Tyson v. Loan Assn., 156 Mo. 588. Depositions taken, as were these, are taken to be used conditionally in the suit— that is, de bene esse. In Ex parte Brockman, 233 Mo. l. c. 161, it was ruled as follows: “The provisions of the statute relating to the taking of depositions de bene esse, are in the nature of the old chancery practice relating to a bill of discovery, entitling the party to sift the conscience of his adversary. [Eck v. Hatcher, 58 Mo. l. c. 239; Larimore v. Bobb, 115 Mo. l. c. 453.]”

We have not before us at this time the question whether one eyewitness may not be asked who the other eyewitnesses of an accident were. That information might be useful in chief to identify and earmark the transaction, or in rebuttal. Nor have we the question of the production of books and papers. That form of discovery is allowed and regulated by statute. [Art. 12, Ch. 21, R. S. 1909.] But we have the question whether one litigant may compel the employee of the other to disclose the names of those persons his master may, might, or purposes to use as witnesses. We are of opinion he is not entitled to such discovery, absent a statute requiring it.' [Devoy v. Transit Co., 192 Mo. l. c. 219, et seq.) Such was the rule relating to discovery in chancery from which the rationale of this character of deposition is borrowed. The philosophy of the thing is nowhere more instructively and learnedly expounded than by the eminent author, Mr. Wig-more — a writer whose erudition, industry, chaste vigor of style and reasoning, ornament American jurisprudence. [3 Wig. on Ev., p. 2426, post and ante, q. v.] The sum of the matter may be found in Sec. 1856, p. 2426, thus:

“In chancery practice, a party to a suit at law has always been entitled, by a bill of discovery, to ascertain before trial the tenor of his opponent’s knowledge and belief upon all the facts in issue — in other words, to obtain disclosure of his testimony before trial. The soundness of this policy rests upon reasons already examined {ante, Sec. 1847, par. 2). But the tenor of this discovery was strictly limited to the opponent’s own testimony, that is, his own admissions resting on his knowledge and belief. It is true that the bill required from the opponent an answer under oath stating all that he claimed in opposition; but to this extent what was obtained was no more than a sworn pleading, stating such material facts as would be alleged in any pleading. But of the evidence which he was to bring forth in support of those facts — the names of his witnesses and the circumstances to which they would testify — he was required to betray nothing in advance, except so far as he himself could bear testimony. In answering as a witness to facts, it was no excuse for him that his testimony would incidentally reveal his witnesses’ names; but this did not impugn the general principle that he was entitled to keep to himself all evidential data except his own testimony.”

A late case on all-fours is, Ex parte Schoepf, 74 Oh. St. 1.

Some use is made of a single expression in Devoy v. Transit Company, 192 Mo. l. c. 220, viz.: “The deposition of respondent could have been taken timely and he could have been compelled to uncover his witnesses. ” But that sentence taken with the thread and trend of the discourse, and keeping in mind the matter under discussion (and the rules for interpreting decisions — State ex rel. Bixby v. St. Louis, 241 Mo. 231), cannot promulgate and evidently was not intended to promulgate the doctrine that in a suit between A. and B., the deposition of O. (C. being at best a mere witness and not a party, or, as appears here, not even a witness in the case) can be taken to discover the names of persons he had heard say they were present at the accident.

The views expressed lead to only one conclusion. That is, that the motion to quash the writ should be denied and that the judgment of the Kansas City Court of Appeals should itself be quashed.

It is so ordered. Let the relator pay the costs. Judges should not be mulcted in costs or other forms of'damages because of judgments rendered by them.

All concur.