86 Mo. 505 (Mo. 1885), Cox v. Volkert

• Citation: 86 Mo. 505
• Date: Invalid date
• Docket Number: .
• Parties: COX, Receiver, v. VOLKERT, Appellant.
• Court: Missouri Supreme Court

Page 505

86 Mo. 505 (Mo. 1885)

COX, Receiver,

v.

VOLKERT, Appellant.

Supreme Court of Missouri.

October Term, 1885

Appeal from Cole Circuit Court. --HON. E. L. EDWARDS, Judge.

REVERSED.

Smith & Krauthoff for appellant.

(1) The plaintiff had no right to maintain this suit. ( a ) There was no authority to appoint a receiver in the case of Huegel v. Wallendorf. General powers in this respect in equity are limited by the statute. High on Receivers, sec. 23; Fellows v. Heermans, 1 Abb. Pr. (N. S.) 1; Newman v. Hammond, 46 Ind. 119. Cox was not appointed for the purposes named in sections 3660 and 3661, Revised Statutes. Gill v. Balis, 72 Mo. 424. ( b ) If the order appointing Cox receiver is not void, yet it did not and could not confer upon him the power to maintain this action. He is not the real party in interest, nor an executor or administrator, nor the trustee of an express trust. R. S., secs. 3462, 3463; State ex rel. v. Gambs, 68 Mo. 289. The receiver only had authority to sue for debts existing at the time of the appointment. State ex rel. v. Gambs, 68 Mo. 289; Hannah v. Bank, 67 Mo. 678. The receiver's right to sue must be founded in the statute, if at all. The order of the court appointing him could not enlarge his power beyond that which the law gave him, nor could the consent of parties. Hannah v. Bank, supra; Freeman v. Winchester, 18 Miss. 677. Unless authorized by statute a receiver cannot sue; he had no power to sue under the equity practice. State ex rel. v. Gambs, 68 Mo. 296, separate opinion of Judge Henry and cases cited; Justice v. Kirlin, 17 Ind. 588; Manlove v. Burger, 38 Ind. 22; Freeman v. Winchester, 18 Miss. 577; Battle v. Davis, 66 N.C. 252; Screven v. Clark, 48 Ga. 41. ( c ) The right of the plaintiff to sue was an issuable fact. The authority claimed was required to be duly alleged, and having been denied it devolved upon plaintiff to show it. High on Receivers, secs. 208, 231; White v. Joy, 3 Kern. 83; Bangs v. McIntosh, 23 Barb. 591; Coope v. Bowles, 42 Barb. 87; Screven v. Clark, 48 Ga. 41. This point does not stand waived. A plaintiff must allege a cause of action in his favor. 13 Mo. 532; 39 Mo. 373; 65 Mo. 105; 35 Mo. 373. And, unless he does so, the petition states no cause of action, and the objection can be made at any time. 38 Mo. 489; 52 Mo. 333; 53 Mo. 141; 65 Mo. 105 and 528; 67 Mo. 289; 21 Wis. 678; 28 N.Y. 242; 39 Ind. 165. The motion to strike out parts of the answer was practically a demurrer. 54 Mo. 400; 63 Mo. 19; R. S., sec. 3524. It went back to the petition and raised the question of its sufficiency. 57 Mo. 184; 10 Peters 257; 14 B. Mon. 544; 39 Wis. 345; 51 Me. 414. This objection is not one of " legal capacity to sue," but that the plaintiff has no cause of action, nor any interest in the matter sued. 35 Mo. 373; 65 Mo. 105; 32 N.Y. 397; Catholic Church v. Tobbein, 82 Mo. 418. (2) The court erred in striking out the portions of defendant's answer in brackets. In actions by receivers " no right of defence shall be impaired." R. S., sec. 428. The rights of the parties are not changed by his appointment. High on Receivers, secs. 204, 205. Coope v. Bowles, 42 Barb. 87; Williams v. Babcock, 25 Barb. 109. The same defences can be made, and with like effect as against the parties themselves. Bank v. Peck, 29 Conn. 384; Bell v. Shibley, 33 Barb. 610. The defendant is entitled to the same off-sets and counterclaims. High on Receivers, secs. 247, 248; Colt v. Brown, 12 Gray 233; Berry v. Brett, 6 Bosw. 627; Van Wagoner v. Gas Light Co., 3 Zab. 283; Curtis v. Leavitt, 15 N.Y. 9, 42, et seq. (3) Defendant's answer is not " inconsistent pleading," such as is condemned by law. Nelson v. Brodhack, 44 Mo. 596; McAdow v. Ross, 53 Mo. 199; Rhine v. Montgomery, 50 Mo. 566; Bell v. Brown, 22 Cal. 671, 676, et seq.

A. M. Hough and Edwards & Davison for respondent.

There being no instructions preserved in the bill of exceptions, there is no question of law presented or saved in a manner which this court can review, and it will not undertake to weigh the evidence, to determine whether it justified the finding of the trial court. Easley v. Elliott, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Wielandy v. Lemuel, 47 Mo. 322. Courts of equity have power to appoint receivers to take charge of partnership affairs. Whether the court had the power or not to appoint a receiver in this case, it undoubtedly had jurisdiction of the subject-matter and parties, and by consent could appoint some one to take charge of the estate, and collect the debts, etc., and this was all that was done in this case, and this appellant, who was a party to the proceeding, consented to the plaintiff's taking charge of, and collecting the rent, and whom he repeatedly recognized as receiver, and cannot now, at this late day, be heard to complain. The order appointing Cox receiver, is a judgment of the court, entered by the consent of all the parties to the suit, including this appellant, and that judgment cannot be attacked in this proceeding. It is well settled in this state that a judgment, regular on its face, cannot be attacked collaterally. Herndon v. Hawkins, 65 Mo. 265; Holt County v. Harmon, 59 Mo. 165; Bailey v. McGinnis, 57 Mo. 362; High on Receivers, sec. 203, p. 134; Vermont & Canada Ry. Co. v. Vermont Central Ry. Co., 46 Vt. 792. Submitting to the appointment of a receiver by those who were before the court, and had a right to object, and who could have appealed from the order if dissatisfied with it, but did not, is such an acquiescence in the order as renders it the law of the case, with respect to the right to have a receiver. High on Receivers, sec. 37; Post v. Dorr, 4 Edw. ch. 412. The authority to appoint a receiver in the case of Huegel v. Wallendorf cannot be raised in this proceeding. The regularity of a receiver's appointment, or the competency of the person appointed, cannot be called in question in a collateral proceeding. It is immaterial whether the order of appointment was erroneous or improper; while it is a subsisting order the receiver will be sustained in his possession of the property. High on Rec'rs, sec. 203; Railroad v. Railroad, 46 Vt. 792. The appointment of a receiver in the settlement of partnership affairs, falls within that class of incidental powers which courts, having jurisdiction over such cases, have full authority to exercise. It is a legitimate exercise of the jurisdiction of a court of equity. High on Rec'rs, sec. 472; Sayler v. Mockbie, 9 Iowa 209; ...