ADDENDUM A reply to what is said above in this dissenting opinion has just been circulated. This necessitates the addition of a few words. Both the principal opinion and the reply proceed on the theory that American Constitution Insurance Company et al. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795, decided last February, held that the Circuit Court of Cole County had no jurisdiction of the cause of action. That is not the fact. The opinion in that case received a carrying vote only as to the result, namely, that the judgment of the circuit court be affirmed and the impounded funds be turned over to the Superintendent of Insurance. HAYS, J., may have concurred in the result because he believed the cause should be affirmed on the merits. As a matter of fact, the files of the court show he was of that opinion and thought as late as last December that the circuit court did have jurisdiction of the cause of action. Therefore, the reasoning and conclusion to the contrary in that decision did not represent the views of a majority of the judges of this court.
Judge Hays was recorded as concurring in the majority ruling in the instant prohibition case, which possibly may be thought to indicate he has changed his views on the question of jurisdiction. (I do not know, since he has been absent during the times herein mentioned, on account of illness, and his vote has simply been recorded.) But whether he has or has not, the fact cannot operate retroactively and give the American Fire Insurance Company case any authoritative effect that it did not have when handed down. Neither could respondent know several days ago when he filed his suggestions in opposition to the issuance of a writ of prohibition *Page 353 herein that it would not be claimed the opinion has an effect it did not have when it was decided.
The practice followed by this court without deviation has been that where an application for a writ of prohibition is filed, the application will either be denied or a provisional rule in prohibition issued, except where the respondent by a demurrer or motion for judgment on the pleadings, formally admits the truth of the allegations in the application. Even then he admits them only for the purposes of the writ and does not concede they are actually true. [State ex rel. Jackson County v. Waltner,340 Mo. 137, 144 (3), 100 S.W.2d 272, 276 (4).] In determining whether we issue the provisional rule we look only to facts stated in the application. [State ex rel. Haughey v. Ryan, 180 Mo. 32, 79 S.W. 429.] Consequently, a respondent in his suggestions in opposition to the issuance of the provisional rule should assume the facts stated in the application to be true. It is evident from the face of respondent's suggestions in opposition to the issuance of the provisional rule that he did not intend to submit the cause on the allegations of the relator's petition without oral argument. His right to brief and argue the case is plain, in view of the fact that American Constitution Fire Insurance Co. v. O'Malley, supra, is not controlling authority for anything it says other than the result. If the circuit court did have jurisdiction of the cause and the same were affirmed on the merits, quite a different question would be presented from that decided in the principal opinion here.
It is announced that Judge Hays will be present at the May Term of this court en banc, and thereafter, when the cause could be heard by the whole court. To prevent this by the summary issuance of a writ absolute seems to me an injustice. Ellison andLeedy, JJ., concur.