Bushman v. Barlow

• Citation: 40 S.W.2d 637,328 Mo. 90
• Parties: Anna Bushman, Ruth Bushman, Anna Bushman, Curatrix for Frederick Peper Bushman, and Anna Bushman, Administratrix of Estate of Christian Peper Bushman, v. Estelle Peper Bushman Barlow, Appellant. and Christian Peper, Defendant, v. L. Frank Ottofy, Respondent
• Decision Date: 24 June 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 637

328 Mo. 90

Anna Bushman, Ruth Bushman, Anna Bushman, Curatrix for Frederick Peper Bushman, and Anna Bushman, Administratrix of Estate of Christian Peper Bushman, v. Estelle Peper Bushman Barlow, Appellant. and Christian Peper, Defendant, v. L. Frank Ottofy, Respondent

Supreme Court of Missouri

June 24, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Anthony F Ittner, Judge.

Reversed and remanded.

Chas J. Macauley, Harry H. Haeussler and Foristel, Mudd Blair & Habenicht for appellant.

(1) The order appointing the receiver was wrongfully made on an application adverse to appellant, in a proceeding wrongfully instituted. Bushman et ux. v. Barlow, 15 S.W.2d 329; Bushman et ux. v. Bushman, 311 Mo. 551. (2) The compensation of the receiver and his attorneys for services rendered by them and expenses of the receivership are but costs in the case and should be taxed and paid as such. Sec. 1451, R. S. 1919; St. Louis v. Gas Light Co., 11 Mo.App. 237, affirmed 87 Mo. 224; 2 Tardy's Smith on Receivers, sec. 629, p. 1759; Hulings v. Jones, 63 W.Va. 696; McReynolds v. Brown, 121 Ill.App. 261; State ex rel. v. Thomas, 249 Mo. 109; Pullis v. Iron Co., 90 Mo.App. 249; McAnrow v. Martin, 183 Ill. 472; Highly v. Dean, 168 Ill. 266. (3) The fees of the receiver's attorneys should be allowed by the court to the receiver as part of his expenses, and taxed as a part of the costs in the case. Bank v. Byan, 76 W.Va. 485; McReynolds v. Brown, 121 Ill.App. 266; 2 Tardy's Smith on Receivers, sec. 629, p. 1759. (4) When a receiver is wrongfully appointed on an application adverse to the owner of the property in a proceeding wrongfully instituted (as the case at bar was), the receiver is not entitled to take from the trust funds in his hands money to pay his compensation, his attorney's compensation or the expenses of the receivership. St. Louis v. Gas Lt. Co., 11 Mo.App. 237; State ex rel. inf. v. Bank, 197 Mo. 605; Weston v. Watts, 52 N.Y.S. (45 Hun) 221; Beach on Receivers (Alderson's Ed.), sec. 119, p. 131; McAnrow v. Martin, 183 Ill. 472; Highly v. Dean, 168 Ill. 266; Wills Valley Mining & Mfg. Co. v. Galloway, 155 Ala. 628; Ford v. Gilbert, 42 Ore. 531; French v. Gifford, 31 Iowa 428. (5) To require appellant to pay the receiver's compensation and the expenses of the receivership by permitting the receiver to take from the trust fund in his hands, which fund is the property of appellant, money with which to pay those expenses and compensation, would be enabling the receiver to deprive her of her property without due process of law, in violation of Sec. 1451, R. S. 1919, Sec. 30, Art. II, Constitution of Missouri, and Art. V of Amendments to Constitution of United States. Weston v. Watts, 52 N.Y.S. (45 Hun) 221. With reference to the item of $ 700 additional allowance made in Judge Ittner's memo to Ottofy as an additional allowance, that must be taxed as costs and paid as other costs in the case. Sec. 1451, R. S. 1919; City v. Gas Co., 11 Mo.App. 237.

Conway Elder and Jones, Hocker, Sullivan & Angert for respondent.

OPINION

Gantt, P. J.

This case came to me on reassignment. Defendant appealed from the decision of the court on her exceptions to the reports of the receiver in charge of property pending the litigation. The amount in dispute is about $ 14,000.

In Bushman et al. v. Bushman et al., 311 Mo. 551, 279 S.W. 123, we held that the petition on which the appointment of the receiver was based did not state a cause of action. Therefore, we directed the court to set aside the order making the appointment. The court complied with our mandate, and ordered the receiver to file a complete report in said cause showing all moneys received and disbursed by him during the time of the receivership. The receiver complied with this order by filing his sixth and final report. Thereupon the defendant filed exceptions to the first, second, third, fourth, fifth and sixth reports of the receiver. On a hearing the court in a memorandum opinion ruled the questions presented by the exceptions to said reports. Judgment was entered in accordance with the opinion. As stated, defendant appealed from said judgment.

In this connection it should be noted that as a result of clerical error, the judgment does not conform to the ruling of the court on the thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth exceptions. This error is not material on this review and is mentioned as indicating that it was not overlooked.

The receiver moves to dismiss the appeal. He contends that the decision on the exceptions to said reports is not an appealable judgment. The rule is stated by standard texts as follows:

"Where a receiver's account is in the nature of a final account, an order approving or disapproving it is in the nature of a final judgment and will give the right of appeal to a person aggrieved by it," citing Chapman v. Atlantic Trust Co., 119 F. 257; Shannon v. Shepard Mfg. Co., 230 Mass. 224; E. Martin & Co. v. Kirby, 34 Nev. 205. [Smith on Receivers (2 Ed.) sec. 808.]

"So the parties to the cause in which he is appointed, and who are interested in the fund in his hands, may appeal from a final decree settling the receiver's accounts. And where a receiver's account embraces every transaction in his trust relation and covers the entire period for which he was originally appointed, an order settling his accounts is final and therefore appealable at the instance of the party in interest and this is so although he has, by a subsequent order, been continued in his trust," citing Saulsbury v. Coal, Iron & Railroad Co., 110 Ala. 591. [High on Receivers, sec. 819b, p. 972.]

"A final judgment or decree has been said to be one which disposes of the cause or of a distinct branch thereof, reserving no further question or directions for future determination." [1 Freeman on Judgments, sec. 22.]

Moreover, it is provided by statute as follows:

"Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from . . . any final judgment in the case." [Sec. 1018, R. S. 1929.]

This section was considered by the St. Louis Court of Appeals in Bank & Trust Co. v. Siefert et al., 18 S.W.2d 572. It was there held that the words "any final judgment" did not limit the right of an appeal to the last judgment in the case. Had the Legislature so intended, it would have used the word "the" instead of the word "any."

In the instant case the receiver did not file a complete report, as directed by the court, showing all moneys received and disbursed by him during the receivership. He filed a sixth and final report. The court treated this report with the five previous reports as a complete and final report. It was assumed that those reports embraced every transaction in the receiver's trust relation and covered the entire period of his receivership. On issues presented by the exceptions of defendant to items of this complete report, and on issues presented by items with which defendant claimed the receiver should have charged himself, the court adjudicated the controversy between defendant and receiver. After judgment the receiver could pay or appeal. We think the judgment was final within the meaning of Section 1018, Revised Statutes 1929.

He also contends the appeal should be dismissed for the reason the abstract does not contain all the evidence. He did not favor us with an additional abstract as authorized by Section 1028, Revised Statutes 1929. On examination we find the abstract is sufficient to permit a review of the questions presented. The motion is overruled.

He next contends, and the trial court ruled, that certain orders allowing the receiver to appropriate money from the trust fund in payment of receiver's and attorney's services were "final and res judicata," for the reason no appeal was taken by defendant from said orders during the term at which they were entered. Those orders were made pending the appeal of defendant from the order of the court overruling defendant's motion to set aside the order appointing the receiver.

How could said orders be final when they were entered before our decision on the order of the court appointing the receiver? A determination of that question might determine the validity of said orders. We do not think a party is required during a receivership to appeal from each order entered therein by the court. The rule is stated as follows:

"Concerning the receiver's final accounting and report this has been said: 'The proper practice . . . is for the court,...