Ballew Lumber & Hardware Co. v. Missouri Pac. Ry. Co.

• Decision Date: 23 June 1921
• Docket Number: No. 21411.,21411.
• Citation: 232 S.W. 1015,288 Mo. 473
• Court: Missouri Supreme Court
• Parties: BALLEW LUMBER & HARDWARE CO. et al. v. MISSOURI PAC. RV. CC. et al.

323 S.W. 1015

288 Mo. 473

BALLEW LUMBER & HARDWARE CO. et al. v. MISSOURI PAC. RV. CC. et al.

No. 21411.

Supreme Court of Missouri, Division No. 2.

June 23, 1921.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Suit by the Bellew Lumber & Hardware Company and others against the Missouri Pacific Railway Company and others. From a judgment for defendants on demurrer, plaintiffs appeal. Affirmed.

T. L. Philips and E. T. & C. B. Allen, all of St. Louis, for appellants.

Edw. J. White, Jas. F. Green, and H. H. Larimore, all of St. Louis, for respondents.

WALKER, J.

This is a suit inequity to have the transfer of the assets of the Missouri Pacific Railway Company to the Missouri Pacific Railroad Company declared a fraud upon the plaintiffs, who allege that they are overcharge claimants of the railway company, and for an accounting, and to impress upon the assets and capital stock of the railway company in the possession of the railroad company an equitable lien until the amount found to be due plaintiffs and all interveners upon an accounting shall have been paid, and for a receiver. The petition is based upon the theory that overcharges by a carrier belong in equity to the shipper, and that the assets of an insolvent carrier constitute a trust fund for the benefit of its creditors, although they have been diverted to a reorganization company in which the stockholders of the insolvent carrier have their rights preserved. The defendants demurred on the ground of (1) a lack of jurisdiction; (2) incapacity of the plaintiffs to sue; (3) pendency of a like suit in a federal court; (4) defect of parties; (5) improper joinder of causes of action; (6) no cause of action stated. The trial court sustained the demurrer, the plaintiffs declined to plead further, whereupon their petition was dismissed, and there was a judgment for the defendants, from which an appeal was perfected to this court.

In support of the demurrer, it is averred among other things that the court was without jurisdiction. To render this contention tenable it is necessary that the petition disclose the defect which precludes the court's action: We may concede that the obligations of the contracts made by the railway company with the plaintiffs survive, and that they may in appropriate actions, based upon their respective claims, enforce same against any property belonging to the railway company which it may be shown has passed into the hands of another than a bona fide purchaser for value, and is therefore held in trust for the company and its stockholders. K. C. S. v. Guardian Tr. Co., 240 U. S. 166, 36 Sup. Ct. 334, 60 L. Ed. 579; Mo. Pac. Ry. Co. v. Boyd, 228 U. S. 482, 33 Sup. Ct. 554, 57 L. Ed. 931; Louisville Tr. Co. v. L., N. A. & C. Ry., 174 U. S. 674, 19 Sup. Ct. 827, 43 L. Ed. 1130; Railroad Co. v. Howard, 7 Wall. 392, 19 L. Ed. 117; Mumma v. Potomac Co., 8 Pet. 281, 8 L. Ed. 945.

The general jurisdiction of the circuit court, in cases presenting the facts stated, is, as shown by the authorities cited, well established. But more than a general jurisdiction of a class is necessary to authorize the court to hear and determine the case. By this we mean that, while a court may have jurisdiction of the subject-matter of a class of suits, it does not necessarily follow that it may hear and determine the particular case submitted for its consideration. This right may be and is oftentimes dependent upon other matters, the determination of which is necessary before the court's right to adjudicate the issues involved can be definitely ascertained. St. Louis v. Waterman, 277 Mo. loc. cit. 226, 209 S. W. 905. Conceding, therefore, the court's general authority to entertain and adjudicate cases belonging to the class of that at bar, it is pertinent to consider whether any other facts disclosed by the allegations of the petition preclude the court from hearing and disposing of the case, or, in short, if the allegations made impose that duty.

II. This is an equitable proceeding, and the general rule applicable thereto, as concerns the parties, is that all persons materially interested, whether legally or beneficially, in the outcome of the action, should be joined therein in that all those necessary to a final determination of the issues should be before the court. Norton v. Reed, 253 Mo. 236, 161 S. W. 842; Breimeyer v. Bottling Co., 136 Mo. App. 84, 117 S. W. 119; S. W. Bell Tel. Co. v. State, 75 Okl. 42, 181 Pac. 487; Fla. L. R. Phos. Co. v. Anderson, 50 Ma. 501, 39 South. 392; 16 Cyc. 181.

Our Code gives express approval to this rule as applied to all classes of cases, as follows:

"All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article." Section 1157, R. S. 1919.

An interpretation of the rule in other jurisdictions and of the statute, which may be measured by a like canon of construction, is that the joinder of parties is permitted, when the cause of action is common to all of the plaintiffs and the right under which they claim is the same as to each, and the complaint of all is against the same defendant for the doing of acts which affect all alike. Rafferty v. Cent. Tr. Co., 147 Pa. 579, 23 Atl. 884, 30 Am. St. Rep. 763; Rowbotham v....