ON MOTION TO MODIFY. I concurred in the result of the opinion filed herein, but now withdraw this limited concurrence, and dissent from the result of the opinion, for reasons which I now assign.
I. The opinion properly rules that the trial court had no jurisdiction over the Kansas City Amusement Company, and no right to appoint a receiver for such company. There was no suit pending against such company in which a receiver could have been appointed. This in addition to the fact that such corporation had gone through a receivership, and such receivership had been closed and the receiver discharged. It is not even a debatable question as to the absolute want of jurisdiction to appoint a receiver for such corporation. Eliminating this portion of the judgment as in excess of jurisdiction, we have left the receivership in the case of Hartman et al. v. Elliott Theater Enterprises Corporation. Of this portion of the judgment in the next paragraph. *Page 682
II. In the Hartman Case the receiver and the court had charge of the property under and by virtue of the ninety-nine-year lease. The only right and power that either the court or its receiver had to hold the property was by virtue of the lease. Neither the court nor its receiver can deny the original validity of this lease, because, if it is invalid, the jurisdiction and power to further hold possession of the property is gone. This lease was inventoried as the chief asset of the Elliott Theatre Enterprises Corporation. It is the only instrument by which that corporation had any claim to the possession of the property, and is the only instrument by which the receiver for such corporation can claim the right of possession. It is trite law that the receiver acquires only such rights and title in the property as the insolvent corporation possessed. As the Elliott Theatre Enterprises Corporation was dependent solely upon this ninety-nine-year lease for its rights in the property, the receiver's rights were likewise dependent upon that lease. The very right and jurisdiction of the court to hold the property, through its receiver, is dependent upon that lease, and if it fails, then the right, power and jurisdiction to further hold the property fails. Of this situation there can be no question.
III. Now to the actual situation after the elimination of the Kansas City Amusement Company, and the fifteen-year lease. The ninety-nine-year lease had forfeiture provisions. After the circuit court in the Hartman Case appointed its receiver for the Elliott Theatre Enterprises Corporation, the receiver took possession of the property of the Scarritt Estate Company, under and by virtue of this lease. This possession was subject to all the provisions of the lease. If the lease expired by the lapse of its term, the receiver's right to hold would end, and the trial court would have no further jurisdiction over the property. So too, if the lease be terminated in any other manner, the right, power and jurisdiction to further hold the property from the rightful owners *Page 683 would end. In the Hartman Case, the Scarritt Estate Company filed an intervening petition asking for the possession of its property, or for the leave of court to sue its receiver for such possession. This petition set out in detail all the facts showing that the Scarritt Estate Company was entitled to a forfeiture under the terms of the ninety-nine-year lease, and all the facts showing that it had forfeited the lease as per the terms of the lease. No answer was made to this petition. The facts therein stated stood confessed. It is true that evidence was offered showing the fact pleaded to be true, but as no denial of the facts were made, and no denial of the forfeiture was made, the introduction of this evidence was an unnecessary precaution. So that on the face of the pleadings the forfeiture of this lease for ninety-nine years (which was the only instrument giving the court or its receiver the right to hold the property) is an admitted fact, and the sole question left is the purely legal question as to whether or not the court and its receiver lost jurisdiction of the property upon the admitted facts. Where the jurisdiction of a court is dependent upon facts, and the facts stand admitted the question of jurisdiction then becomes one of law, and prohibition will lie. This is likewise true as to mandamus. [Carter v. Bolster, 122 Mo. App. l.c. 143-144; State ex rel. v. Mills, 231 Mo. l.c. 500; State ex rel. v. Homer, 249 Mo. l.c. 65 et seq.; State ex rel. v. Holtcamp, 266 Mo. l.c. 372 et seq.]
The right, the power and the jurisdiction of Judge Johnson and his receiver to further withhold the possession of this property was dependent upon facts. The relator in this present proceeding had, in its intervening petition in the Hartman Case, duly verified by the affidavit of Judge E.L. Scarritt, set up the facts showing both the reasons for a forfeiture of the lease, and the forfeiture itself. This petition stands unchallenged by answer either upon the part of the receiver, or the creditors. The facts are therefore admitted and not disputed. *Page 684 In such case the jurisdiction becomes a question of law, and prohibition will lie. So run all the cases cited, supra.
An appeal would not be an adequate remedy. See cases, supra, and the following: State ex rel. v. Jones, 274 Mo. l.c. 395; State ex rel. v. Elkin, 130 Mo. l.c. 109; State ex rel. v. Aloe, 152 Mo. l.c. 483.
The admitted facts recited in the intervening petition shows a condition which renders an appeal wholly inadequate. The receiver was paying no rent. He was permitting taxes to accumulate, and allowing insurance to lapse. If ever an appeal would prove wholly inadequate, it is in this case. I think our opinion should be so modified as to oust the circuit court of the jurisdiction over this property, to the end that the possession thereof may be returned to the rightful owners, the Scarritt Estate Company. I therefore dissent to the present opinion.