Kortjohn v. Seimers

• Citation: 29 Mo.App. 271
• Parties: HENRY KORTJOHN, Receiver, etc., Respondent, v. P. LOUIS SEIMERS et al., Defendants, and HERMAN NOENNINGER, Intervenor, Appellants.
• Decision Date: 14 February 1888
• Court: Missouri Court of Appeals

29 Mo.App. 271

HENRY KORTJOHN, Receiver, etc., Respondent, v. P. LOUIS SEIMERS et al., Defendants, and HERMAN NOENNINGER, Intervenor, Appellants.

Court of Appeals of Missouri, St. Louis.

February 14, 1888

APPEAL from the Cape Girardeau Court of Common Pleas, HON. ROBERT L WILSON, Judge.

Affirmed.

R. B OLIVER and J. W. LIMBAUGH, for the appellants: This is an action at law and defendants were entitled to a jury. Peacock, Adm'r, v. Nelson, 50 Mo. 256; Ragan v. McCoy, 29 Mo. 357; Smith v. Beef Canning Co., 14 Mo.App. 522; S. C., affirmed, 74 Mo. 154; Rev Stat., 1879, sec. 3600. The notes and deed of trust executed at the same time to secure them are to be construed together. They form parts of the same transaction. Brownlee v. Arnold, 60 Mo. 79; Waples v. Jones, 62 Mo. 440. This trustee had the right and it was his duty to hold the proceeds of the sale until the court settled the rights of those claiming the same; and the judgment of the trial court in charging him interest on that amount, in the face of his answer and the testimony, is against the law. Child v. Mann, L. R. 3 Eq. 806; Lozier's Ex'rs v. Van Saun's Adm'r, 2 Green Ch. 325; Yates v. Tisdale, 3 Edw. Ch. 71; 3, Bispham's Princ. Eq., ch. 2, p. 380 et seq., secs. 420, 422. H. P. Seimers is not mentioned at all in the first count of the petition, and a judgment upon the first count would not, therefore, " affect all the parties to the action." Such pleading is in the teeth of the code. Rev. Stat., 1879, sec. 3512; Doan v. Holly, 25 Mo. 357. The second count does not charge H. P. Seimers with insolvency or with fraud, and does not state facts sufficient to constitute a cause of action. He does not charge that he is remediless, or state any facts from which an inference may be drawn that the aid of a court of equity is required to obtain full and complete satisfaction. Dunham v. Cox, 10 N.J.Eq. 437; Harris v. Taylor, 15 Cal. 348.

KLEIN & FISSE, for the respondent: The substantial merits of this case have been reached by the court below in its judgment, and no errors were committed by said court against the appellants materially affecting the merits of the action. The action of the court below in refusing a jury trial to the appellant, Noenninger, was not error of which appellants can complain, because he was not properly a party to the suit, and the court had erred in granting leave to Noenninger to intervene in the case as a defendant, or to file any pleading whatever in the case. He had not obtained leave of the court which appointed the receiver to sue him; and a suit against a receiver cannot be instituted without leave of the court which appointed him receiver. Heath v. Railroad, 83 Mo. 617, 622; Combs v. Smith, 78 Mo. 32, 38; Turner v. Railroad, 74 Mo. 602, 604; Thompson v. Scott, 4 Dillon 508; Parker v. Browning, 8 Paige Ch. 388, 391; Hazelrigg v. Bronaugh, 78 Ky. 62; Railroad v. Railroad, 46 Vt. 792, 798; DeGroot v. Jay, 30 Barbour 483; Kerr v. Breckenridge, 96 Ind. 69; Skinner v. Maxwell, 68 N.C. 400, 404; Telegraph Co. v. Telegraph Co., 7 Bissell 367; Robinson v. Railroad, 66 Pa.St. 160; Davis v. Gray, 16 Wallace 203, 218; Wiswall v. Sampson, 14 Howard, 52, 65; Barton v. Barbour, 104 U.S. 126. Not even by consent of receiver can he be sued without leave of court. Kennedy v. Railroad, 3 F. 97, 99. Nor is the rule restricted to controversies concerning property actually in the hands of the receiver. Ames v. Trustees, 20 Beavan 322, 353; Hazelrigg v. Bronaugh, 78 Ky. 62; Steele v. Sturgis, 5 Abb. Prac. 442; Rutter v. Tablis, 5 Sand. S. C. Rep. 610; Wiswall v. Sampson, 14 Howard, 52. To such a controversy, Noenninger was not a proper or necessary party. The action is not one for the recovery of money only in which Noenninger could demand a jury trial. The judgment against Herman P. Seimers, who " was cognizant of, and participated in, said fraud and fraudulent purpose," of the trustee, is correct. He figures merely as the cats-paw of the trustee. The facts alleged in the petition, as against Herman P. Seimers, are sufficient to entitle the plaintiff to the relief prayed and granted.

OPINION

ROMBAUER J.

The record in this case presents propositions which are peculiar. The facts may be briefly stated thus: January 31, 1885, the appellant, Noenninger, executed a deed of trust whereby he conveyed certain property in the city of Cape Girardeau to the appellant, Louis Seimers, to secure to Singer & Berg, the payees, the payment of three promissory notes bearing even date with the deed, and payable as follows: One for $2,160, due August 25, 1885; one for $1,245, due November 25, 1885, and one for $1,245, due February 25, 1886, all bearing interest at the rate of eight per cent. per annum from date.

In May, 1885, a settlement of some sort was had between Noenninger and Singer & Berg, which resulted in a credit of six hundred dollars being endorsed on the note last maturing.

On the twenty-ninth of July, 1885, the plaintiff was appointed receiver of the firm of Singer & Berg, by the circuit court of the city of St. Louis, and as such receiver, among other assets of said firm, took possession of the two notes last maturing. The note for $2,160 was transferred by the firm, prior to its maturity, for value, to Still well & Bierce.

After plaintiff's appointment as such receiver, he, conjointly with the representative of Stillwell & Bierce, made a written demand upon the trustee to execute the powers of sale conferred upon him by the deed of trust; such deed containing a provision that, upon the non-payment of either of the notes at maturity, they all should become due and payable, whether payable upon their face or not.

In pursuance of this request the trustee sold the property, November 28, 1885, and realized upon such sale forty-five hundred dollars. Out of this amount he paid the note of $2,160, first maturing, and interest thereon in full, amounting to $2,304, leaving in his hands to be appropriated to the two notes last maturing, a net amount of $1,838.75. This amount, the plaintiff, as holder of such notes, demanded of him, but he refused to pay it over, claiming that Noenninger, the grantor, set up some claim to the money.

The plaintiff thereupon, having first obtained leave so to do from the circuit court of the city of St. Louis, brought this action against the trustee and his son, Herman P. Seimers. The petition contained two counts. The first, after stating the facts above recited, asks a money judgment against the trustee. The second states that Herman P. Seimers, one of the purchasers at the trustee's sale, holds the property for the benefit of the trustee, his father; that this is a mere resulting trust; that the deed to the son was made in fraud of the plaintiff's rights; that no money was ever paid, either by the son, father, or any one else, for one-third interest in the said property, at the trustee's sale, to the trustee or any one else, but that such one-third is still liable, in the hands of the father and son, to the lien of said $1,838.75, and interest.

The defendants, P. Louis and Herman Seimers, first filed an answer raising the general issue. The former subsequently withdrew this answer, and filed his separate answer. This answer admits the trust, the sale, and the amount realized from the sale and in the defendant's hands, as claimed by the petition, and denies all other allegations of the petition. It further states that both the plaintiff and Noenninger claim the fund in the hands of the defendant trustee, and have threatened to sue, and did sue, process out against him. The answer fails to state...