Scott-Force Hat Company v. Hombs

• Decision Date: 12 March 1895
• Parties: Scott-Force Hat Company, Appellant, v. Hombs et al.; Sturgeon Savings Bank et al., Interpleaders
• Court: Missouri Supreme Court

30 S.W. 183

127 Mo. 392

Scott-Force Hat Company, Appellant, v. Hombs et al.; Sturgeon Savings Bank et al., Interpleaders

Supreme Court of Missouri, First Division

March 12, 1895

Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

C. B Sebastian, W. Gordon and W. M. Williams for appellant.

(1) First. The motion in arrest should have been sustained. The Sturgeon Savings Bank could not maintain the interplea and was not a proper party thereto. If the deed of trust was valid, the trustee had the legal title to the property involved and was alone authorized to maintain the action. Meyers v. Hale, 17 Mo.App. 204; Parker v Rodes, 79 Mo. 88; Pace v. Pierce, 49 Mo. 393; Lacy v. Gibony, 36 Mo. 320. Second. It is true that the name of the trustee is mentioned in the interplea. He does not, however, verify the same, nor does anyone for him or claiming to act in his behalf. 1 R. S. 1889, p. 229, sec. 572; Waples on Attachment, 82; Erwin v. Evans, 92 Mo. 472; Johnson v. Gilkeson, 81 Mo. 55. (2) The goods were sold prior to the trial of the interplea, and the proceeds were in the hands of the sheriff. The court committed error in rendering judgment in favor of the interpleaders "for the recovery and restitution of said property." Distilling Co. v. Hubbard, 53 Mo. 23; Hewson v. Tootle, 72 Mo. 632. (3) The court erred in giving declarations of law for interpleader, excluding issues raised by the pleadings and evidence of the other party. Clark v. Hammell, 27 Mo. 55; Fitzgerald v. Hayward, 50 Mo. 516; Stocker v. Green, 94 Mo. 280. (4) There is no evidence in the record that Barnett ever consented to have the individual indebtedness of O. W. Barnett and W. T. Hombs included in the deed of trust upon the partnership property. In the absence of such consent, the partnership goods could not be applied to that purpose, and, to say the least, the deed of trust could not be enforced for anything more than the debts due from the firm; and the court erred in turning over all the property to the interpleaders. Bates on Partnership, sec. 410; Hilliker v. Francisco, 65 Mo. 598; In re Edwards, 25 S.W. 904; Sexton v. Anderson, 95 Mo. 373; Bank v. Brenneisen, 97 Mo. 145.

Odon Guitar and C. H. & Webster Gordon for interpleaders, respondents.

(1) This court will disregard the alleged error as to parties, and strike out the name of the unnecessary party, and render judgment in favor of the trustee. Such action can in no way affect "the substantial rights of the adverse party." R. S. 1889, secs. 2100, 2101, 2303; Gregory v. McCormick, 120 Mo. 657; Webster v. Railroad, 116 Mo. 114; Hunt v. Railroad, 89 Mo. 607; Rude v. Mitchell, 97 Mo. 365. (2) If there was a misjoinder of parties, and the error was prejudicial to appellant, it was the province and duty of appellant to have raised that question by demurrer in the court below, and, failing to do so, it is too late to raise it here. R. S. 1889, secs. 2043, 2047; Bensieck v. Cook, 110 Mo. 173; Bank to use v. Gilpin, 105 Mo. 17; Lucke v. Tredway, 45 Mo.App. 507; Anderson v. McPike, 41 Mo.App. 328; Spillane v. Railroad, 111 Mo. 555; Paddock v. Somes, 102 Mo. 226; Dodson v. Lomax, 113 Mo. 555; Crenshaw v. Ullman, 113 Mo. 633. (3) The beneficiary in the deed of trust was a proper party, "being the real party in interest," and as such could sue in his own name, whilst on the other hand the trustee could likewise maintain the action. R. S. 1889, secs. 1990, 1991; Snyder v. Express Co., 77 Mo. 523; Ellis v. Harrison, 104 Mo. 270. (4) J. S. Richie, cashier of the Sturgeon Savings Bank, was "a real party in interest." and a party to the suit, "and claims the property in controversy." His affidavit to the interplea was a legal and proper verification of the interplea, under the statute. R. S. 1889, sec. 572; Lumber Co. v. Raddatz, 28 Mo.App. 210. (5) The judgment rendered by the court below is strictly regular and formal, and the only judgment the court could have rendered under the pleadings and issue submitted in the case. Mills v. Thompson, 61 Mo. 415; Hewson v. Tootle, 72 Mo. 632; Co. v. Rogers, 34 Mo.App. 126. (6) The instructions given respondent by the court are strictly accurate and correct under respondent's theory of the case. Henry v. Railroad, 113 Mo. 525; State ex rel. v. Hope, 102 Mo. 410; Dougherty v. Railroad, 97 Mo. 647; Owens v. Railroad, 95 Mo. 169; Reilly v. Railroad, 94 Mo. 600; Vinegar Mfg. Co. v. Guggamoss, 98 Mo. 391. (7) In assuming said debt of $ 2,000, Hombs & Barnett gave their individual notes to the Sturgeon Savings Bank. The change in the form of said firm note of $ 2,000 did not change the nature and "legal status" of the debt. The capital stock of which it was a part went into the hands of the new firm, and all the rights pertaining to the debt followed and inhered in it, in its changed form. It remained a partnership debt, and was legally and properly included in the deed of trust. Dunnica v. Clinkscales, 73 Mo. 500; In re Estate of Edwards & Wiggington v. John McCune, 47 Mo.App. 307.

OPINION

Robinson, J.

During the year 1888 a mercantile firm composed of Robinson & Hombs was organized and began business as general merchants in the town of Harrisburg, Boone county, Missouri, and continued in business until October, 1890, when one O. W. Barnett purchased the interest of said Robinson in said firm and assumed all the liabilities of the old firm of Robinson & Hombs, among which was a debt of the old firm to the Sturgeon Savings Bank for money borrowed, which had gone into, and made part of the capital stock of, said firm.

On the organization of the new firm and to increase its capital stock, it was agreed that the copartners should assume the payment of the $ 2,000 debt due the Sturgeon Savings Bank individually, which they did by executing their individual notes to the bank for $ 1,000 each, and these notes constitute part of the debt secured by the deed of trust in controversy, under which the interpleader claims the property that was afterward attached by the plaintiffs herein, the Scott-Force Hat Company and other creditors of said new firm of Hombs & Barnett.

On the twenty-seventh day of January, 1892, W. T. Hombs, for and in behalf of Hombs & Barnett, executed a deed of trust to the property together with a small storeroom worth about $ 300 to one J. T. Hombs as trustee for the benefit of the Sturgeon Savings Bank, securing an alleged indebtedness of $ 4,800. And on the following day the trustee took possession of the storehouse and the entire stock of goods named in said deed of trust, under his deed of trust, and was in possession of and holding same when the sheriff of Boone county, under several writs of attachment sued out by creditors of Hombs & Barnett, on the thirtieth day of January, 1892, levied upon and seized all the goods and merchandise named in the deed of trust, together with the storeroom where the goods were kept; and among the writs levied was one in favor of the Scott-Force Hat Company, plaintiff herein.

At the February term, 1893, in the Boone county circuit court, J. T. Hombs and the Sturgeon Savings Bank filed their interplea claiming all said property in the hands of the sheriff. The attached property was by order of the court sold and the proceeds of sale, amounting to $ 2,372, was in the hands of the sheriff at the date of the trial of the issue on the interplea.

After the sale of the attached property the interpleaders filed an amended interplea still claiming all the property in the hands of the sheriff and verified same as follows:

"I, John S. Ritchie, cashier of the Sturgeon Savings Bank, one of the above named interpleaders, on my oath, say that the allegations and averments contained in the foregoing interplea are correct.

"[Signed] John S. Ritchie.

"Subscribed and sworn to, etc."

The plaintiff then filed its answer denying that the interpleaders were entitled to the possession of the property, and alleged that said interpleaders claimed under a deed of trust executed by W. T. Hombs, who assumed, but without authority, to represent the firm of Hombs & Barnett, to secure a note of $ 4,800 to the Sturgeon Savings Bank; that the deed of trust was executed fraudulently and for the purpose of hindering, delaying and defrauding the creditors of Hombs & Barnett, and was received by the bank for that purpose; that, when the deed of trust was executed by Hombs, the firm of Hombs & Barnett had been dissolved and that Barnett had purchased all the assets of the firm and owned them individually; that the deed of trust was given fraudulently for the purpose of securing the individual indebtedness of O. W. Barnett and W. T. Hombs to the exclusion of the firm creditors.

A trial on the pleading, as thus made, was had before the court sitting as a jury, and, after the giving and refusing of instructions, the court found the issues for the interpleaders, and adjudged that the interpleaders have judgment for the recovery and restitution of the property, and that they recover of plaintiffs their costs, and that execution issue therefor. Plaintiff filed its motion for a new trial and in arrest of judgment, and both being overruled, it prosecutes its appeal to this court.

The questions before us now for review are the alleged errors in the giving and refusing of instructions, and such as arise upon the record in the case. The appellant contends that the motion in arrest should have been sustained for the reason that the Sturgeon Savings Bank could not maintain the interplea and was not a proper party thereto; that if the deed of trust, under which alone interpleaders claimed the property, was valid, the trustee held the legal title to the property involved and was alone authorized to maintain this action, the respondent...