Miller v. Continental Assurance Company of America

• Decision Date: 02 March 1911
• Citation: 134 S.W. 1003,233 Mo. 91
• Parties: WALTER J. MILLER et al. v. CONTINENTAL ASSURANCE COMPANY OF AMERICA et al
• Court: Missouri Supreme Court

134 S.W. 1003

233 Mo. 91

WALTER J. MILLER et al. v. CONTINENTAL ASSURANCE COMPANY OF AMERICA et al

Supreme Court of Missouri

March 2, 1911 ^[*]

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Dismissed.

Selden P. Spencer, Hough, Hough & Walker; R. H. Stephens, Grant Gillespie, Arthur N. Sager, and Henderson, Marshall & Becker for appellants.

John S Leahy for respondents.

WOODSON J. Burgess, C. J., absent and Lamm and Graves, JJ., dissent in separate opinion by Graves, J.

OPINION

In Banc.

WOODSON J.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiffs and against the defendants.

The defendant company was duly organized and incorporated under the laws of this State for the purpose of engaging in the business of life insurance. Three of the plaintiffs were stockholders in said defendant company, and the remaining three were directors and stockholders therein. The defendant Gardner was secretary of the company, but not a stockholder. Thompson was a stockholder and treasurer thereof, but had been removed as treasurer shortly before this suit was brought; and Gillespie was selected as general counsel of the company, and was a party to said mismanagement, hereinafter mentioned. The capital stock of the company was $ 500,000, and was divided into fifty thousand shares of the par value of $ 10 each. Gardner was also employed as commissioner to sell the stock of the company, and most of which had been sold and was in the hands of Gardner and not in the coffers of the treasurer at the time this suit was begun.

The petition charged the defendants with mismanagement and misappropriation of the funds of the company, and asked that they be enjoined from further abuse of power, and that a temporary receiver be appointed to take charge of and hold the assets of the company until the condition of the company could be ascertained; and, if found to be insolvent, then it prayed that the affairs of the company should be wound up, debts paid, etc. The circuit court appointed the receiver as prayed for, and from that order the defendants appealed to this court.

When the cause reached this court, Henderson, Marshall and Becker, purporting to be attorneys for the company, filed the following motion to dismiss the appeal, to-wit (formal parts omitted):

"Now comes the Continental Assurance Company of America and respectfully moves this honorable court to dismiss the appeal heretofore taken on July 25, 1910, from the interlocutory order of the circuit court of the city of St. Louis, overruling the motion to revoke the order appointing a temporary receiver for the Continental Assurance Company of America, and assigns the following grounds for this motion, to-wit:

"First. Because said appeal, so far as the Continental Assurance Company of America is concerned, was taken without the knowledge, consent or authority, and against the wishes of said company, by Harry B. Gardner, Grant Gillespie and W. H. Thompson, who had no authority from said company to do so.

"Second. Because the affidavit for the appeal is wholly insufficient in law, in this, that it recites that the affidavit for an appeal was made by Harry B. Gardner, Grant Gillespie and W. H. Thompson, 'acting on behalf of said company,' but does not state that the affiants are the agents of said company for the purpose of taking such appeal, nor that they had any authority from the company to take such appeal.

"Third. Because the board of directors of said company has expressly repudiated the action of said Harry B. Gardner, Grant Gillespie and W. H. Thompson, in taking said appeal, and has directed its counsel, Henderson, Marshall & Becker, to dismiss said appeal.

"Fourth. Because said company desires the receivership of said company to be continued, and the appeal herein ties the hands of the circuit court pending the appeal, under the decision of this court in the case of State ex rel. v. Gates, 143 Mo. 63, 44 S.W. 739, and embarrasses the receiver and the company in the preservation and collection of the assets of the company, and seriously jeopardizes the said assets.

"Fifth. Because the appeal in so far as Harry B. Gardner, Grant Gillespie and W. H. Thompson, individually, are concerned, is not authorized by law, for the reason that no receiver was appointed for them, but only as to the company, and the appeal was taken from the order refusing to revoke the order appointing a temporary receiver for the company, and further, because no judgment has been entered against Gardner, Gillespie or Thompson from which they could appeal.

"Wherefore this company asks that the appeal herein be dismissed."

Counsel for the plaintiffs, the respondents here, are acting in conjunction with counsel for the company, and insist upon the dismissal of the appeal.

Counsel for the personal appellants strenuously oppose this motion, and assign many reasons therefor, among others, that the firm of Henderson, Marshall & Becker have no legal authority to represent the appellant company.

The foregoing statement briefly but sufficiently outlines the facts and the respective contentions of counsel to enable us to apply the law applicable to the case.

I. It is contended by counsel for the personal appellants, that the firm of Henderson, Marshall & Becker have no authority to represent the appellant company.

There are several valid reasons why that contention is unsound.

First. Because there is a strong presumption, where a party appears in a court of record by a duly licensed and practicing attorney, that the attorney was duly authorized to appear and represent such party in said court.

In Cyclopedia of Law and Procedure, vol. 4, page 928, B., the following rule governing this question is stated, as follows: " Although it is necessary that an attorney be specially authorized to act for a client, his position as an officer of the court makes it unnecessary for him, in the ordinary case, to show this authority in any way, there being a firmly established presumption in favor of an attorney's authority to act for any client he professes to represent. It follows, therefore, that he will not be required to show his authority unless it is properly called for." In support of this rule many cases are cited by the author, one or more from almost every State in the Union.

The same rule has been announced by this court in the following cases: Cochran v. Thomas, 131 Mo. 258, 33 S.W. 6; Scott v. Royston, 223 Mo. 568, 123 S.W. 454.

The record contains no evidence which tends to overthrow that presumption; and in this discussion of this question, this court in the case of State ex rel. v. Crumb. 157 Mo. 545, 57 S.W. 1030, l. c. 557, said: "Neither was it necessary to prove his (the attorney for plaintiffs) employment by the records of the State Board of Education, for he had a right to appear in his official capacity as an attorney and officer of the court in all cases except those specially provided for by law. Nor was he accountable to the defendant in this kind of a case for his right to appear. The party for whom he appeared could alone question his right to appear in this and ordinary litigation."

It is also laid down in 4 Cyc., p. 931, b., that, even in those cases where the authority of an attorney may be properly challenged, " the burden of proof is on the side denying the attorney's authority, but after the party the attorney professes to represent has denied his authority, the burden of showing authority is on the attorney."

Second. Because it is wholly immaterial to the personal appellants whether the firm of Henderson, Marshall & Becker have authority to represent the appellant company or not. They have no personal interest in the appeal, as no judgment was rendered against any of them, from which an appeal would lie.

Third. Because certified copies of the proceedings of the board of directors of the appellant company, duly adopted, have been filed in this court, showing that said attorneys are duly authorized to represent it in this court, and repudiating the authority of all others to so act for it.

Counsel for the personal appellants insist that this court has no authority to consider said copies of the proceedings of the board of directors, for the reason that they are not preserved in the record.

It is not only true that said copies of said proceedings are not preserved in the record sent up from the circuit court, but it is also true that said proceedings had not taken place at that time, nor until some time subsequent to the date when the appeal in this case was taken, consequently it was a physical impossibility for said copies to have been preserved in the record. But notwithstanding that fact, that is no reason why this court should not consider said copies of said proceedings of the board.

Unquestionably the corporation has the legal right to speak through its record regarding its business transactions, including the employment and discharge of legal counsel. This is academic, and is not questioned here. But the contention here is, that this court has no authority to consider such records if not preserved in the record of the case. Generally speaking that is true, and is universally true as regards all matters which constitute a part of the proceedings in the trial court, but that rule does not apply to any matter which settles or disposes of the case after it reaches this court.

The rulings of this court and that of the Court of Appeals are uniform upon that question. [State ex rel. v. Phillips, 97 Mo. 331; State ex inf. v. Standard Oil Co., 218 Mo. 387 to 393; Cape, etc., Railroad v. Bridge Co., 215 Mo. 286.] These cases involved the settlement of the causes after they reached this court.

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