State v. Reynolds

• Citation: 233 S.W. 483,289 Mo. 506
• Decision Date: 08 July 1921
• Docket Number: No. 22646.,22646.
• Parties: STATE ex rel. CALHOUN, Circuit Judge, et al. v. REYNOLDS et al., Judges of St. Louis Court of Appeals.
• Court: United States State Supreme Court of Missouri

233 S.W. 483

289 Mo. 506

STATE ex rel. CALHOUN, Circuit Judge, et al. v. REYNOLDS et al., Judges of St. Louis Court of Appeals.

No. 22646.

Supreme Court of Missouri, in Banc.

July 8, 1921.

Motion for Rehearing Denied July 22, 1921.

Certiorari by the State of Missouri, on the relation of John W. Calhoun, Judge of the Circuit Court of the City of St. Louis, and others, to quash a judgment entered by the St. Louis Court of Appeals in prohibition, brought at the relation of George T. Priest against the named relator (226 S. W. 329), which judgment restrains and enjoins the respondent judge from proceeding further in the suit of J. H. Conrades and others against the Blue Bird Appliance Company; Hon. George D. Reynolds and others, Judges of the St. Louis Court of Appeals, being respondents. Death of the named respondent having been suggested, the cause has been revived against the Hon. Charles H. Danes, Successor Judge. Writ quashed.

Smith & Pearcy, of St. Louis, for relators. G. T. Priest, of `St. Louis, for respondents.

ELDER., J.

Relators seek by writ of certiorari to quash a judgment entered by the St. Louis Court of Appeals in an original proceeding in prohibition brought at the relation of George T. Priest against John W. Calhoun, Judge, 226 S. W. 329, which judgment restrains and enjoins the respondent judge from proceeding further in the suit of J. H. Conrades et al. v. Blue Bird Appliance Company, pending in the circuit court of the city of St. Louis, in which suit the said judge had theretofore appointed a receiver for the said Blue Bird Appliance Company. The death of respondent herein, the Honorable George a Reynolds, having been suggested, this cause has been revived against the Honorable Charles H. Daues, successor judge of the St. Louis Court of Appeals.

The facts in the proceeding in prohibition, which are most relevant to this review, are thus stated in the opinion of the Court of Appeals:

"It appears that on May 25, 1920, John H. Conrades, Thomas Mellow and Ben G. Brinkman were by the circuit court of the city of St. Louis appointed receivers of a certain corporation known as the Blue Bird Manufacturing Company, and that said receivers took charge of all of the assets of the said company under their powers as receivers of said company, and that amongst said assets were 51 per cent. of all of the capital stock of a corporation known as the Blue Bird Appliance Company, a Missouri corporation.

"On June 19, 1920, said John H. Conrades, Thomas Mellow, and Ben G. Brinkman, as receivers of the said Blue Bird Manufacturing Company, and as such owners of 51 per cent. of the capital stock of the Blue Bird Appliance Company, filed a suit in the circuit court of the city of St. Louis, wherein said receivers asked for the appointment of a receiver for the conflict with said Blue Bird Appliance Company, and upon the same day a temporary receiver was duly appointed and qualified. Thereafter the court, on August 20, 1920, appointed a permanent receiver, upon the giving of a bond in the sum of $25,000, which bond was on the same day filed, presented, and approved by the court, since which time the judge of the circuit court, respondent here, has retained jurisdiction of the said case continuously, and the receiver, since the date of his appointment as permanent receiver, and up to the time of the filing of the application for a writ of prohibition herein, has continued in charge of and in control of the property of the said Blue Bird Appliance Company.

"The main allegations set out in the petition of the said Conrades et al., receivers of the Blue Bird Manufacturing Company, and as such holders of 51 per cent. of the capital stock of the Blue Bird Appliance Company, in which petition the appointment of a receiver for the said Blue Bird Appliance Company is sought (as appears from the respondent's return herein) are:

"`A. The plaintiffs in said cause were stockholders owning $5,100, par value, of the capital stock of the defendant corporation, whose total capital was $10,000, and were also creditors to the extent of approximately $450,000.

"`B. That the assets of the defendant corporation located in various states were being subjected to attachment suits, levies and other forms of waste, and that all of said assets were in danger of being utterly destroyed and dissipated.

"`C. That all of the directors, officers, managers and executives of the defendant company had on the 17th day of June, 102G, resigned and abandoned the property and assets of the defendant corporation, and defendant corporation was without any officers, directors, managers or executives.

"`D. That unless a receiver were appointed by the court the value of plaintiffs' stock in the defendant corporation would be utterly destroyed, and the value of plaintiffs' claim would be utterly destroyed.

"`E. The prayer was for the appointment of a temporary receiver, an inquiry by the court into all the facts alleged, the appointment of a permanent receiver and for all general and equitable relief that to the court under the circumstances might seem meet and proper.'

"On October 19, 1920, a petition in bankruptcy was filed in the United States District Court for the Eastern District of Missouri by certain creditors against the Blue Bird Appliance Company. One of the grounds of alleged bankruptcy of the said Appliance Company set forth in the bankruptcy petition is the appointment of a receiver for the said Blue Bird Appliance Company in the cause of Conrades et al. v. Blue Bird Appliance Company, above mentioned."

The opinion further recites that the application for the writ of prohibition contains averments that the relator Priest is a creditor of the Blue Bird Appliance Company in the sum of $7,500 and had attempted to perfect a lien therefor by attachment proceedings but that the aforesaid bankruptcy

proceeding was designed to defeat the said lien; that although interested in defeating the proceedings in bankruptcy, he (the relator Priest) could not therein attack the appointment of the receiver for the said Blue Bird Appliance Company, as such attack would be collateral, but that the only course open to him was to raise the question of jurisdiction by a direct proceeding; that the circuit court was without jurisdiction to appoint a receiver in the suit of Conrades et al. v. Blue Bird Appliance Company, such lack of jurisdiction appearing upon the face of the petition filed in said cause.

Proceeding, the opinion recites that respondent's return to the preliminary rule issued shows that the relator Priest had been an officer and director of the Blue Bird Appliance Company up to the 18th day of June, 1920, on which day he, with the other officers and directors of the company, had resigned as such officers and directors; that immediately after resigning as officers an a directors of the Blue Bird Appliance Company all of the stockholders of that company except relator Priest (who owned one share) and the aforesaid Conrades, Mellow and Brinkman, receivers of the Blue Bird Manufacturing Company, left the city of St. Louis.

Further matters pertinent to a determination of the contentions of relators herein, as to why the judgment of the Court of Appeals should be quashed, will be adverted to in the course of the opinion.

I. At the threshold of a consideration of the questions presented by relators, let us reaffirm the doctrine which we have firmly enunciated in our most recent pronouncements, to wit, that in certiorari it is not our province to determine whether the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but only whether upon those facts it announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar state of facts. State ex rel. American Packing Co. v. Reynolds et al., 230 S. W. 642, decided en banc on April 30, 1921, our number 22290, not yet [officially] reported; State ex rel. Peters v. Reynolds et al., 214 S. W. loc. cit. 122; State ex rel. Mechanics Amer. Nat. Bank v. Sturgis et al., 276 Mo. 559, 208 S. W. lac. cit. 462; Majestic Mfg. Co. v. Reynolds et al., 186 S. W. 1072.

Relators in their brief...