(dissenting). — This is an original proceeding for a writ of prohibition. It was begun in July, 1893, during vacation of the court.
A petition was filed by Mr. Merriam, the relator, and submitted to the chief justice, who then made a rule or order upon the defendants to show cause at the opening of the ensuing October term of the court, why a writ of prohibition should not be awarded, requiring *466them to no further hear or prosecute a certain cause entitled “St. Louis, Cape Girardeau & Fort Smith Railway Company, plaintiff, v. Leo Doyle, Edward Hidden, and the Mercantile Trust Company of New York, defendants,” pending in the Cape Girardeau court of common pleas.
The defendants in the case at bar are the judge of that court, the said railway company, Louis Houck, as president and as receiver of that company, and the three trustees just mentioned.
To this rule defendants filed returns, setting forth the proceedings in the suit in the common pleas court, and asserting the jurisdiction of the latter to determine that suit.
To some of these returns “exceptions” have been taken; but upon all of them the relator has moved to make absolute the rule for a prohibition.
The facts which we consider decisive of the present application are admitted by all the parties in their respective statements to the court.
The merits of the controversy have been fully discussed at the bar and in the briefs, so it is not necessaryto further refer to the formal steps by which the merits have been reached.
The record here is, however, embellished with a mass of details, many of which are not relevant to the precise issue for determination now.
The St. Louis, Cape Girardeau & Fort Smith Eailway Company (which for convenience we shall call the Cape Eailway) filed a petition, March 4, 1893, in the Cape "Girardeau court of common pleas against Leo Doyle, and the other above named trustees in the three deeds of trust in the nature of mortgages, then existing as liens upon the real and other property of that railway. The petition recited fully the history of the railway and of the mortgages and other indebt*467edness thereof, its present inability to pay its obligations as they matured; that default upon the interest coupons of the bonds secured by the mortgages had occurred but that the property was ample to meet its debts if “handled under the order of the court;” and praying that its property be applied to the discharge of its dgbts under the direction of the court, to which end the appointment of a receiver for the railroad and all its appurtenances was asked as well as an injunction against all persons from interfering with the management and control of its property; and for general relief.
The petition, without further enlarging upon its contents, may be briefly described as one-in which the railway company gracefully sought the refuge of the court to have its own mortgages foreclosed, and meanwhile to remain in charge of a receiver, with a view to prevent seizure of its property, piecemeal, by its creditors.
It was modeled after certain noted precedents, the soundness of which, in point of law or equity, we shall not necessarily have to discuss at this time.
Upon consideration of that petition, Judge Ross, of the common pleas court, on the same day, made an order appointing Louis Houck receiver of the entire railway property in question. Mr. Houck qualified as receiver by giving an approved bond, and filing his oath of office. He forthwith took possession of the property and has remained ever since in possession, operating the railway as such receiver. March 8, 1893, Mr. Hidden as trustee filed an answer in the cause, consenting to the appointment of Mr. Houck as receiver.
On March 7, 1893, an injunction was issued by Judge Ross to Mr. Klotz and Mr. Merriam, the present relator, prohibiting them from interfering with Mr. Houck as receiver. On the next day a like injunction was issued to the attorneys of Messrs. Klotz and Merriam.
*468On the same day, March 8, 1893, these injunctions were served on the parties to whom they were directed. On that day Mr. Klotz appeared before Judge Ross and presented a petition, reciting his appointment as receiver of the Cape railway property by Judge Wear, as judge of the Stoddard county circuit court, and praying for an order of delivery of the property to him as receiver. This petition was by Judge Ross ordered filed, and continued to the next term of the common pleas court.
May 22, 1893, the railway company filed an amended petition in that court, to the same general effect as the first, but somewhat more elaborately framed. To this the defendant, Mr. Doyle, as trustee (who had entered his appearance immediately on the filing of the original petition), appeared, May 26, 1893, and interposed an answer in the nature of a cross bill, setting up at large his interest as trustee in the property under the mortgages, approving the receivership, asking a sale of the mortgaged property of which he is trustee, and the application of proceeds to the secured debts.
The court of common pleas, May 27, 1893, acted upon the amended petition and the answer or cross bill by entering a renewed or confirmatory order of appointment of Mr. Houck as receiver of all the railway property, covered by the mortgages represented by Mr. Doyle as trustee, and made several subsidiary orders respecting the administration of the receivership.
At this stage of the suit, Mr. Merriam applied to this court for a prohibition as first above stated.
Mr. Klotz had previously applied for a mandamus with the result shown by the report of that litigation. State ex rel. Klotz v. Ross (1893), 118 Mo. 23.
The facts of the proceedings before Judge Wear aud iu the Stoddard county circuit court in the suit of *469Mr. Merriam against the Cape railway and the three trustees above named, have been given in the opinions in the mandamus case (118 Mo. 23), and need not be repeated. But some facts have since transpired which are supposed to have relevancy to the issue before us.
July 24, 1893, Judge Wear, in vacation, re-appointed Mr. Klotz as receiver of the railway property, and he qualified as such on that day. Since then that proceeding has been transferred by change of venue to the circuit court of Iron county; and in it the Cape railway has filed an answer, setting up fully the proceedings in the common pleas court, above described, and asserting that, because thereof, and of the possession by Mr. Houck as receiver, and of other facts recited, the common pleas court has complete possession and jurisdiction of the property, and should not be disturbed therein by any other court of co-ordinate jurisdiction.
Mr. Merriam has at no time appeared, specially or otherwise, in the court of common pleas, or filed any objection to its course of action or jurisdiction in the matter of the receivership. The defendants, however, claim that he is legally represented there by Mr. Doyle, trustee in the mortgages securing the bonds held by Mr. Merriam.
The foregoing is a sketch of the substance of the controversy. Any other facts that may seem to bear materially on the result will be mentioned in the course of this opinion.
1. The' Cape Girardeau court of common pleas, by the law of its creation, has concurrent original jurisdiction with the circuit court of the county “in all civil actions at law.” Laws, 1851, p. 201; R. S. 1889, p. 2219. This language was held in Roth v. Tiedeman (1873), 53 Mo. 489, to confer jurisdiction co-extensive with that of the circuit court, over all civil actions of *470whatever nature; and in Fulenwider v. Fulenwider (1873), 53 Mo. 439, it was expressly decided that such civil actions included suits involving equitable rights and remedies.
These decisions have stood unreversed for thirty years; and we adhere to them without discussion as expressing the law touching the right of the common pleas court to hear and adjudicate suits of the general class to which the receivership proceeding in that court belongs.
The allegations of the original, as well as of the amended petition, show that the real property of the Cape railway lies partly in the city of Cape Girardeau.
So that upon the law and facts shown by the record in that case, that court had originally authority to entertain and decide a suit of that nature at the time it took possession of the property in litigation through the agency of Mr. Houck as its receiver.
It, hence, had jurisdiction of the subject-matter of that proceeding, as has been held by this court in many decisions, of which we cite but a few. Walker v. Likens (1857), 24 Mo. 298; State ex rel. v. Weatherby (1869), 45 Mo. 17; Rosenheim v. Hartsock (1886), 90 Mo. 365; Hope v. Blair (1891), 105 Mo. 93.
2. It is, however, claimed in this connection that the common pleas court had no power to appoint its receiver, because the original petition, invoking its authority in that behalf, was so deficient as to state no cause of action, and that consequently the appointment must be treated as a nullity.
It may be well to repeat what was said in a recent case in the first division, without dissent, that “where enough facts are alleged to disclose that the case falls within a class of proceedings which the court is lawfully authorized to hear and decide, the question of the sufficiency of the showing, made for the purpose of *471setting the court in motion, is one of law for the determination of the court itself to which the showing is addressed, whatsoever its rank.” (Dowdy v. Wamble (1892), 110 Mo. 284, 285).
In State ex rel. Ozark County v. Tate (1892), 109 Mo. 270, it was unanimously held by the first division that the omission to state a cause of action was not even an irregularity in procedure justifying the setting aside of a judgment on motion after the lapse of the judgment term. If that proposition be correct, for stronger reason would not such omission furnish ground to treat the action of a court, on such a defective pleading, as a nullity upon a collateral attack?
In State ex rel. v. Railroad (1889), 100 Mo. 61, it was remarked, in the discussion of the main point involved, that it would be manifestly improper to issue a writ of prohibition against a court having jurisdiction of a cause, upon an application alleging that it was about to pronounce judgment on a petition which did not state a cause of action, but which the trial court had held sufficient. -
In the case before us the common pleas court had judicial power to appoint a receiver of the property, in question upon a proper state of facts. If the original application for the exercise of that power was defective, even' defective in substantial respects, it was subject to amendment, which would relate back to the time when the pleading which it amended was filed. It was expressly so held by the first division in Lilly v. Tobbein (1890), 103 Mo. 477.
The general rule has long been recognized in this state that proceedings which are defective or insufficient, but yet amendable, are not void merely because of such insufficiency.
It was said in Hardin v. Lee (1873), 51 Mo. 241, that the fact that the court can make the amendment *472shows “that the proceedings are merely erroneous or irregular, and that the court has jurisdiction.” That ruling has been repeatedly followed in this state.
In one of the decisions applying it, we note that it is further added, in the argument of the court, that a judgment could not be declared void in a collateral proceeding because based upon a defective petition. Burnett v. McCluey (1887), 92 Mo. 230. The same idea was advanced again in Dollarhide v. Parks (1887), 92 Mo. 178.
It can not, we think, in view of these positive expressions of principles in former cases, be correctly held that, if the court of common pleas had lawful power to appoint a receiver of the property in question, upon a proper showing of the facts, its act in making such appointment is necessarily void, in this collateral assault upon it, because the showing on which that court acted was insufficient, in the estimation of some other court, to warrant the ruling which the former court saw fit to make upon that showing.
3. But it must further be remembered that the original petition for a receiver was amended in some particulars during the proceedings, and that Mr. Doyle, one of the defendants therein, interposed an answer in the nature of a cross bill, uniting in the request for the receivership, and praying such action by the court in that matter as he claimed was equitable and proper, in the interest of the creditors secured by the mortgages in which he is trustee.
Whatever opinion may be entertained of the correctness of the ruling of the court in originally appointing a receiver at the instance of the corporation itself, it is plain, we think, that the joinder of the trustee in that application, as indicated, gives the proceeding a far more certain and safe foundation for judicial action than the case at first possessed. The trustee certainly had the *473right, upon the facts submitted by the company, to ask the intervention of a court of equity for the foreclosure of the mortgages in which he was trustee and for the appointment of a receiver in aid of that result. The action of the court in granting that request, of the trustee and of the corporation severally, is very clearly one in which the common pleas court had jurisdiction to take in the exercise of its general powers as a court of equity. This proposition is too self-evident to require argument. Railroad v. Humphreys (1892), 145 U. S. 82; Railroad v. Union Rolling Mill Co. (1884), 109 U. S. 702.
4. It appears, then, from the record of the court, whose right to proceed is called in question, that it has jurisdiction of the subject-matter of the litigation.
The next point for consideration is, whether or not its right to deal with that subject-matter is affected by the proceedings which took place before Judge Wear, or in the circuit court of the neighboring county.
The real issue sought to be submitted, as decisive of the application for a writ of prohibition, is, which of these two receivers has the better title or right to possession of the railway line.
The decision of that issue depends upon the views of law that may be adopted, upon several mooted points, by the authority which shall finally determine that issue, after a finding of the exact facts bearing thereon, from a great mass of conflicting evidence concerning them.
The main position taken by Mr. Merriam, as relator, now is that, by virtue of the proceedings before Judge Wear, Mr. Klotz became invested, as receiver, with a right to possession of the railway property now in custody of the receiver of the common pleas court, and that consequently the latter court has no jurisdiction to entertain or adjudicate the pending cause.
On the other side, defendants insist that the orig*474inal appointment of Mr. Klotz, as receiver, was void for several reasons, one of which is because, as they allege, the. appointment was made by Judge "Wear beyond the territorial limits of Stoddard county. Another is that, if originally valid, the appointment was afterwards vacated by the Stoddafd circuit court. They also assert that the later appointment of the same receiver in July was void because of the then pending applications, on file, for a change of venue, based on the alleged disqualification of the judge to act in that proceeding.
In reply the relator urges that the jurisdiction to proceed with the foreclosure (and incidental receivership) belongs to the court in which the first formal steps were taken to that end, and that they were taken in the Stoddard circuit court. This last mentioned fact the defendants deny, and also seek to avoid by the contention that the right to proceed belongs properly to the court which has subjected first the property in question to its process by seizure.
The case is further complicated by charges of fraud and conspiracy, as indicated in the report of the proceeding in this court for a mandamus (118 Mo. 23; 23 S. W. Rep. 196).
We are asked by relator to solve all these questions of law here and now; and incidentally to decide the questions of fact on which the former depend.
If, upon doing so, we should conclude that the receivership of Mr. Klotz has priority of right over that of Mr. Houck, it is supposed that such a conclusion, founded on our view of facts entirely outside the record of the court of common pleas, would have the legal effect to annihilate its power as a court of equity to entertain the application for a receiver upon which it has acted, and to render all the proceedings in that cause void from the beginning.
Ordinarily we would think that the mere statement *475of such a proposition would sufficiently reveal the inherent weakness of it.
It is no new or unusual thing to bench or bar that the same property is found so situated as to form the subject of litigation in several jurisdictions. Conflicts of rights, depending upon the proceedings of different courts, with respect to the same property, are of frequent occurrence, as the reported cases show. Brown on Jurisdiction, sec. 95.
In Missouri, by the express provisions of our code, the fact that ‘ There is another action pending between ■the same parties, for the same cause, in this state,” is an objection to a petition which may be interposed by a demurrer if it appears from the petition itself. If it does not so appear, that defense must be made by answer. If it is not submitted to the court, either by demurrer or answer, it is waived, and can not be insisted upon thereafter as a defense. R. S., 1889, secs. 2043, 2047.
These sections of our statute law indicate, as plainly as language can, that jurisdiction of the subject-matter of a cause does not depend on whether or not another action is already pending between the same parties for the same property. They also indicate that the court in which the second action is brought for the same property is vested with authority to determine the validity of that objection to the proceeding, either upon demurrer, if the fact is conceded, or by trial of the issue as to such fact, if set up first by answer.
In the case at bar both proceedings as they now stand are in substance to foreclose mortgages. The receiverships are ancillary to that main purpose. Giving relator the benefit of the view he takes (though it is stoutly disputed by arguments' founded on the terms of the three mortgages on the various parts of the railway property), namely, that the two proceedings are *476in their general scope an'd purpose identical (though we do not decide that point), it is, nevertheless, within the judicial power of each of the courts to determine whether or not a prior action of the same nature was pending when that before it was commenced, if the sections above cited from our code of procedure were not written in vain.
Jurisdiction to hear and determine a controversy includes the power to hear and decide all questions of law or fact which bear upon that controversy, subject to the right of review (if any) provided by law, unless that jurisdiction is in some wise limited by the law creating or regulating it.
The right of a court to entertain and adjudicate a subject of litigation, lawfully committed to its judicial power, can not be made to depend upon the fact (outside of its record) whether or not some other court has entertained a similar proceeding touching the same subject. Its ruling, after due consideration of such a fact when- submitted to it, may decisively affect the correctness of the court’s action upon the subject involved, or infect it with reversible error, but it can not take away its power to deal with the matter committed by the law to its decision.
This proposition was directly decided in State ex rel. v. Withrow (1891), 108 Mo. 1, with the concurrence of all the judges of the second division.
That case is plainly decisive of this and the principles on which it is founded have been repeatedly recognized and acted upon by many courts whose opinions are entitled to great consideration. Joseph v. Henry (1850), 1 L. M. & P. 388; In matter of The Charkieh (1873), 8 L. R. Q. B. 197; Broad v. Perkins (1888), 21 Q. B. Div. 533; In re Fassett (1892), 142 U. S. 479 (followed In re Engles (1893), 146 U. S. 357); In re Morrison (1893), 147 U. S. 14.
*477In our judgment it is important to adhere to the principles above declared.
The writ of prohibition has not been regulated by statute in this state. In determining when it shall issue, we are left to follow the principles and usages of the common law.
The true function of the writ is to check the exhibition of judicial power beyond the 'lines marked out by law as the limits for its exercise. It may be used to prevent action by a court in excess of its legitimate authority in the course of a cause whose subject-matter lies within the general cognizance of the court, as well as to forbid assumption of authority over a cause not committed by the law to its decision. But it can not be applied to compel a judicial officer to substitute the opinion of some other court for his own, upon such an issue as that involved in the case in the Cape Girardeau common pleas court, namely, whether or not another action is pending between the same parties for the same property in some other forum.
Under our statutes already cited", the determination of such an issue belongs rightfully to the court in which that issue is raised in any action. Hence a ruling thereon would not be a proper subject for a prohibition; certainly not where, as here, the facts supposed to affect or defeat the right of the court to proceed, are outside the record or judicial cognizance of the court, and the latter has never been called upon to rule upon them. State ex rel. v. Judge (1892), 11 S. Rep. (La.), 935; Hudson v. Judge (1879), 42 Mich. 239.
If, whenever a question of priority of right to property depends on the priority (in legal force and effect) of process or orders of different co-ordinate courts of Missouri, this court is to take up the controversy and settle it by a writ of prohibition, before *478the courts of first instance have passed upon it, this court would soon find itself called upon to decide a great number and variety of cases and issues which the trial courts are equally authorized to determine, and which their machinery gives them greater facilities to determine conveniently.
We should certainly assume in advance of the submission of any such issue or controversy to a trial court that it will decide it fairly, impartially and in obedience to the principles of law.
The suggestion that the use of prohibition may be necessary to prevent a physical conflict between the parties or officers of these courts, we regard as of little weight. The parties in possession of any property, that forms the subject of litigation, are entitled to retain it until there is an adjudication of the right to possession, or until finally ordered by competent authority to surrender that possession. Any hardship there may be to one wrongfully kept from the possession of his own, during the pendency of legal proceedings to assert his rights, is one which is unavoidable under our system of jurisprudence; and can not be made the basis for a departure from the usual and orderly mode of administering justice according to existing law. Porter v. Sabin (1893), 149 U. S. 473.
We conclude that the writ of prohibition should be denied, and the preliminary rule upon defendants discharged. Hence we dissent from the judgment of the majority of the court granting the writ and deciding upon the present right to the possession of the property in the custody of the receiver of the common pleas court.
Judges Uantt and Burgess concur in this opinion.