Luthy v. Woods

• Citation: 1 Mo.App. 167
• Parties: JAMES LUTHY, Plaintiff in Error, v. STEPHENSON WOODS et al., Defendants in Error.
• Decision Date: 14 February 1876
• Court: Court of Appeal of Missouri (US)

1 Mo.App. 167

JAMES LUTHY, Plaintiff in Error,

v.STEPHENSON WOODS et al., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

When a party not subject to garnishment is indebted to an insolvent person, a court of equity will, in some cases, aid a creditor of such insolvent in appropriating this credit to the satisfaction of his demand.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

A. R. Taylor, for plaintiff in error, cited: Pendleton v. Perkins, 49 Mo. 565; Wag. Stat. 1012; Henderson v. Dickey, 50 Mo. 165; Almett v. Leper, 48 Mo. 321; Murry et al. v. Freeman et al., 44 Mo. 521; Turner v. Adams, 46 Mo. 99; McDowell v. Cochran, 11 Ill. 31; Postlewaite v. Howes, 3 Clarke (Iowa), 366; Hadden v. Spades, 20 Johns. 554; Bigelow v. Congregational Society, 11 Vt. 283; Williams v. Hubbard, Watkins' Ch. 28; Kippen v. Glancy, 2 Blackf. (Ind.) 336; Scott v. McMillan, 1 Litt. (Ky.) 302; Farrar v. Haselden, 9 Rich. (S. C.) Eq. 331; Greenway v. Thomas, 14 Ill. 272; Pope v. Solomon, 36 Ga. 341.R. E. Rombauer, for defendants in error, cited: Gen. Stat. 1865, ch. 165, sec. 2; Doan v. Holly, 25 Mo. 357-359; Pendleton v. Perkins and City of St. Louis, 49 Mo. 565; Heller v. Stremmel, 52 Mo. 309.

GANTT, P. J., delivered the opinion of the court.

Luthy filed a petition in the St. Louis Circuit Court, in which he stated, first, a legal demand against Woods & Barnes, and asked judgment for it against them; and then proceeded to state that they were utterly insolvent, having no means or property that could be reached by legal process; that the Board of President and Directors of the St. Louis Public Schools was a municipal corporation, and not subject to garnishment; that said corporation was indebted to Woods & Barnes in the sum of $2,700; that by no means could this fund be subjected to the satisfaction of the claims of the creditors of Woods & Barnes except by the equitable interposition of the St. Louis Circuit Court; that the Bremen Savings Bank claimed the said fund; and concluded with a prayer that the court would give him judgment for his debt against Woods & Barnes, and order the Board of President and Directors of the St. Louis Public Schools to pay him, out of the sum they owed to Woods & Barnes, the amount of such judgment, with costs; that the Bremen Savings Bank should show cause against this judgment, if any they had; and for other and further relief. As against Woods & Barnes, judgment was perfected in the sum of $1,360.34. A general demurrer was filed by the Board of, etc., Public Schools, while the Bremen Savings Bank made no answer. The court sustained the demurrer of the schools, and gave final judgment in their favor and in favor of the bank. Plaintiff sued out this writ of error.

1. The learned counsel for plaintiff invokes the application to the case at bar of the principle declared in Pendleton v. Perkins and the City of St. Louis, 49 Mo. 565, and Turner v. Adams, 46 Mo. 99.

In the case of Pendleton v. Perkins et al. the facts were precisely what they are here, except that Perkins was a non-resident, and no means existed of getting judgment against him; here Woods & Barnes are residents, and a judgment could be had against them without difficulty. Does this difference of facts prevent the application to the case at bar of the principles declared by the Supreme Court on that occasion?

It cannot be said that the plaintiff has exhausted his legal remedies against Woods & Barnes. Clearly, he has done nothing of the kind. But he declares that it would be vain and useless to attempt to put in use against them any legal process; that they are completely proof against everything of this nature, and that a resort to the equitable jurisdiction of the court is all from which he can hope for relief. Will the court, nevertheless, compel him to go through an empty form? or is it an empty form?

If it be an empty form, the court will not compel him to comply with it. Lex neminem cogit ad vana seu inutilia--the law compelleth no man to do a vain or useless thing. This maxim of the common law and of common sense was very lately approved by the decision of the Supreme Court of Missouri in the case of the State Savings Association v. Kellogg & Co., 52 Mo. 583. There the plaintiff had sued a stockholder of an insolvent corporation without bringing suit against the corporation within a year of the accrual of the cause of action, as in terms prescribed by the 13th section of chapter 69 of the General Statutes of Missouri, page 370. The corporation had become bankrupt, and it was alleged in the petition that it was utterly insolvent. The defendant, however, insisted that it was essential that the requirement of the statute should be strictly and literally observed; and of this opinion was the Circuit Court. The Supreme Court reversed the judgment, and in doing so used language so applicable to the principle of the present case that we cannot forbear quoting it: “But it is further contended that this action cannot be maintained, because no suit was first brought against the company. The statute (Wag. Stat. 336, sec. 13) provides that ‘no stockholder shall be personally liable for the payment of any debt contracted by any company formed under this chapter * * * unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due,’ etc. The law does not require useless things, and what possible good could have been accomplished by bringing suit against the company? It would only have been accumulating costs for the plaintiff to pay, in addition to its failure to obtain any satisfaction.

“Before the debt was sixty days old the company was decreed a bankrupt. It had no assets whatever, and it would have been an idle ceremony, a useless form, to have proved up the claim in the Bankrupt Court, for the estate was wholly without funds or means of...