Bruun v. Katz Drug Co.

• Decision Date: 27 May 1948
• Docket Number: 40500
• Citation: 211 S.W.2d 918
• Parties: James Bruun, Appellant, v. Katz Drug Company, Incorporated, Respondent
• Court: Missouri Supreme Court

211 S.W.2d 918

James Bruun, Appellant, v. Katz Drug Company, Incorporated, Respondent

No. 40500

Supreme Court of Missouri, Second Division

May 27, 1948

From the Circuit Court of Jackson County, Civil Appeal, Judge John F. Cook

Appeal dismissed

OPINION

Barrett C.

This action was instituted in March 1929. The purpose of the action is to recover an alleged balance of wages in the sum of $8.96 and an agreed salary of $120.00 a month as a continuing penalty for nonpayment of the wages. Mo. R.S.A Sec. 5082. The continuing penalty claimed now totals about $26,000.00. James Bruun is the plaintiff and the original defendant was a Missouri corporation, the Katz Drug Company Incorporated. In June 1929 the corporate name was changed from Katz Drug Company, Incorporated to Famous Drug Company. In January 1930 the corporate charter of the Famous Drug Company was forfeited, by the Secretary of State, for failure to comply with the corporation laws of Missouri. Chapter 33, R.S.Mo. 1939. In June 1929 a new corporation, Katz Drug Company, was incorporated under the laws of Delaware and all the assets of the Famous Drug Company were purchased by the Delaware corporation.

When the case was here in 1943, Bruun v. Katz Drug Co., 351 Mo. 731, 173 S.W.2d 906, it was held that the action was not abated by the corporation's dissolution but that upon dissolution the officers, directors and managers of the corporation became trustees of the corporation for the purposes set forth in the statutes. Mo.R.S.A., Secs. 5036, 5094. In conclusion it was said that "the party desiring the trustees' presence may take whatever steps he deems proper to secure their presence as defendants." See also State ex rel. McDowell v. Libby, 238 Mo.App. 36, 175 S.W.2d 171.

In February 1947 the plaintiff filed a "motion To Add Parties Defendant And To List Cause For Trial." That part of the motion material here follows: "(2) * * * that on June 13, 1929, more than six months before the forfeiture of the charter of Famous Drug Company, Katz Drug Company was incorporated under the laws of the State of Delaware and took over all the assets of the Famous Drug Company; that the officers and directors of the Famous Drug Company were M. H. Katz, President, Rose Katz, Isaac Katz and Minnie Katz. * * * (4) The incorporation of Katz Drug Company under the laws of Delaware was only a change of name from Famous Drug Company and was effected more than six months before the forfeiture of the charter of the Famous Drug Company and that said Katz Drug Company of Delaware took over all the assets of the Famous Drug Company, at the time of its incorporation. (5) Plaintiff further states that the Trustees of Famous Drug Company, and Katz Drug Company of Delaware are defendants in the above styled cause and in order that they have full notice that said cause is now listed for trial, plaintiff requests that they be formally made defendants. (6) Wherefore: plaintiff moves that M. H. Katz, Rose Katz, Isaac Katz and Minnie Katz, as Trusteees of the Famous Drug Company, and that Katz Drug Company of Delaware be made parties defendant, and that said cause be listed for trial."

The trial court entered an order overruling the motion, whereupon the plaintiff, without taking any other or further steps and without the court's making any other or further orders, filed a "Motion For Rehearing In The Nature Of A Motion For A New Trial" and when that motion was overruled filed the statutory notice of appeal. At the outset the obvious challenge of the appeal to the court is the court's jurisdiction (Beechwood v. Joplin-Pittsburg R. Co., 173 Mo.App. 371, 381, 158 S.W. 868, 871), that is, whether the order overruling the motion is such as final judgment (Mo.R.S.A., Sec. 847.126; S.Ct. Rule 3.24) or final disposition of the cause that the plaintiff may appeal.

As it is with intervention (City of St. Louis v. Silk, (Mo. App.) 199 S.W.2d 23, 27) so it is with respect to amendments relating to parties, their addition or substitution, if the court's order has the force and effect of finally disposing of the cause, or of its merits in some material respect, as to one or more of the parties, the order is appealable. 4 C.J.S., Sec. 116a(1), p. 214; Hoefer v. Wease, (Mo. App.) 104 S.W.2d 721, 723; Lafayette-South Side Bank & Tr. Co. v. Siefert, (Mo. App.) 18 S.W.2d 572; Shepherd v. St. Louis Public Service Co., 64 F.2d 612. In Beechwood v. Joplin-Pittsburg R. Co., 173 Mo.App. 371, 158 S.W. 868, a trustee in bankruptcy was substituted for the plaintiff in his action for personal injuries. The plaintiff filed a motion to set aside the order of substitution and upon the motion's being overruled appealed. The court held that the effect of the order of substitution was a dismissal of the plaintiff's cause and the institution of a new action by the trustee. As to the finality and appealability of the order the court said: "It has been frequently held that an appeal will lie from an order or judgment completely disposing of any collateral matter on the ground that the court's jurisdiction has been exhausted as to the matter decided." On the other hand, if the order adding or denying the addition of parties does not have the effect of discharging some of the parties or the force of creating or enlarging liability, the order is not appealable. Roberts v. Patton, 18 Mo. 485; Harrison v. Scott, 72 Mo.App. 658, 661.

It should be noted that this appeal does not involve the addition of third parties under Section 20 of the Code. There is no question here respecting the trial court's abuse of discretion with reference to third party petitions. Brown v Anderson & Cunningham, 357 Mo.576, 209 S.W.2d 900, (Mo. 40, 285). Here there is no judgment against the old corporation, the original defendant, and the plaintiff is not as a matter of fact proceeding under Section...