Brown v. Home Sav. Bank
| Decision Date | 18 December 1877 |
| Citation | 5 Mo.App. 1 |
| Parties | IRA BROWN, Respondent, v. HOME SAVINGS-BANK, Appellant. |
| Court | Missouri Court of Appeals |
1. A court of equity has no jurisdiction to appoint a receiver for a corporation, since such action would work an amotion of the officers and a dissolution of the corporation, and equity cannot accomplish indirectly what it has no power to do directly.
2. Where a jury is not demanded on either side, and the cause proceeds to trial before the court without objection, the fact that the parties had a right of trial by jury is not a ground for reversal where the point was not made below, at least by motion in arrest.
3. Where a petition states, consecutively and in connected form a good legal ground of action, it does not become a bill in equity merely because the prayer improperly asks for equitable relief, but that part of the petition relating to the remedy, if separately stated, should be rejected as surplusage.
4. Where it is apparent from the record that the facts are all before the appellate court, and that there is nothing more to try, the cause will not be remanded when reversed, but final judgment will be entered by the appellate court.
APPEAL from St. Louis Circuit Court.
Reversed, and judgment.
E. W PATTISON, for appellant: A court of equity cannot appoint a receiver for a corporation.-- Bayless v. Orne, 1 Freem. Ch. 161; Folger v. Columbian Ins. Co., 99 Mass. 274; Neall v. Hill, 16 Cal. 145; Slee v Bloom, 5 Johns. Ch. 380, 381; Fountain Ferry Co. v. Jewell, 8 B. Mon. 142.
CHANDLER & YOUNG, for respondent: A court of equity may appoint a receiver for a corporation without a judgment at law having been first obtained.-- Pendleton v. Perkins, 49 Mo. 565; Haggerty v. Pittman, 1 Paige 298. The appointment of a receiver is an equitable execution to collect a judgment.--2 Story's Eq. Jur., sec. 829; Demply v. Klinesmith, 11 Wall. 610; Berry v. Abbott, 100 Mass. 396. If the court holds that plaintiff has not established a right to his equitable remedy, that is no ground for finding against him on his legal claim.-- New York Ice Co. v. New York Ins. Co., 23 N.Y. 357; Graves v. Spier, 58 Barb. 349; McNeady v. Hyde, 47 Cal. 481; Sternberger v. McGovern, 56 N.Y. 12; 15 Abb. Pr. (N. S.) 257, 271.
The petition in this case sets out the incorporation of defendant as a banking corporation, having its chief place of business in St. Louis, and alleges that, at a date named, plaintiff and defendant, having had mutual dealings, accounted between themselves, and, on settlement, it was found that defendant owed plaintiff $670, which defendant then and there agreed and promised to pay plaintiff, and which plaintiff then and there agreed to accept and receive in full discharge of defendant's indebtedness to him, and which sum plaintiff says is still due, with interest. Plaintiff further avers that defendant is insolvent; that it has closed its offices; that its officers have abandoned their trust; and that its books and accounts cannot be found or inspected by its creditors, and that its assets are being wasted. The petition concludes with a prayer for judgment for the amount claimed, and for the appointment of a receiver. The answer is a general denial, except that the incorporation of defendant is admitted.
The bill of exceptions sets forth that the testimony showed an accounting had, and that defendant admitted its indebtedness to plaintiff in the sum claimed. The testimony of witnesses on either side, as to the other allegations in the petition, is then set forth in full. There was no objection on the part of plaintiff to evidence, and no demurrer or motion of any sort to reform the pleadings. The court made a decree in accordance with the prayer of the petition. The decree begins by stating that the parties came by counsel, and " thereupon the cause came on to be heard upon the petition, answer, and proofs, and was argued by counsel; on consideration whereof, the court doth find that the equity of the case is with the plaintiff, and that the plaintiff recover," etc. The defendant then moved for a new trial, and in arrest of judgment. These motions allege that the petition does not set forth facts sufficient to constitute a cause of action; that there is no equity in the petition; that the court has no jurisdiction to appoint a receiver of a corporation; and that the decree is against the law and the evidence. These motions were overruled. On appeal to this court, we held that the court had no jurisdiction to appoint a receiver, but that plaintiff was entitled to a judgment at law; and, accordingly, we reversed the judgment, and entered judgment for plaintiff here. Afterwards, we entertained some doubt as to the propriety of our action in entering final judgment here; and, on the suggestion of defendant that by this action he was deprived of a trial by jury, we ordered a rehearing on this point.
This case seems to have been treated as a proceeding in equity at the time of the trial, both by court and counsel. If it was a proceeding in equity, there was a misjoinder of causes of action in the same count; and this objection was not waived by failing to demur, and would have been fatal if raised on motion in arrest. The point, however, was not made. Henderson v. Dickey, 50 Mo. 166; Gray v. Payne, 43 Mo. 204.
We think, however, that this is a proceeding at law, and that there is no misjoinder. There is only one cause of action namely, the indebtedness of defendant to plaintiff. The enforcement of his claim and the removal of obstacles to its collection, by the appointment of a receiver, is the relief sought; that is equitable. But the asking of an equitable remedy to which one is not entitled does not make an action essentially legal a proceeding in equity. McClurg v. Phillips, 49 Mo. 315. Where the facts are sufficiently stated in the petition, the plaintiff may have such a judgment as the facts stated entitle him to, though in the prayer he asks a different relief. Miltenberger v. Morrison, 39 Mo. 71. Here the plaintiff states facts sufficient to entitle him to a judgment at law. He asks for a judgment for the amount claimed. He also asks for a relief to which he was not entitled. This might have been stricken out, on motion; but it was suffered to stand, and should have been disregarded. Where a legal claim and an equitable claim are blended in the same count, the court will not sift the petition...
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