Commercial State Bank v. Ankrum

• Decision Date: 14 June 1915
• Docket Number: No. 11686.,11686.
• Parties: COMMERCIAL STATE BANK v. ANKRUM et al.
• Court: Missouri Court of Appeals

177 S.W. 778

191 Mo. App. 251

COMMERCIAL STATE BANK v. ANKRUM et al.

No. 11686.

Kansas City Court of Appeals, Missouri.

June 14, 1915.

Appeal from Circuit Court, Harrison County; G. W. Wanamaker, Judge.

Action by the Commercial State Bank against William Ankrum and others. From a judgment for plaintiff, defendants appeal. Reversed.

Stubbs & Stubbs, of Kansas City, for appellants. Frisby & Frisby, of Bethany, for respondent.

ELLISON, P. J.

Plaintiff brought an action against defendant Williams on a note, by attachment. While that was pending, he brought an action against defendants to set aside deeds made by defendant William Ankrum to his son-in-law and by tie latter to Ankrum's wife, on the ground that they were voluntary and made to defraud Ankrum's creditors. The present controversy grew out of the latter action. Before the case was tried on the merits, plaintiff made application for the appointment of a receiver. The appointment was made, and defendants then moved to vacate the order. This was overruled, and defendants appealed to this court.

Generally a common creditor cannot attack a conveyance of his debtor in an independent action to set it aside for fraud. He should first have his claim ascertained and vouched by a judgment. Martin v. Michael, 23 Mo. 50, 66 Am. Dec. 656; Crim v. Walker, 79 Mo. 335; High on Receivers (2d Ed.) § 406. But an attachment creditor's rights are greater. In that instance there is a seizure of the land, and a lien is fastened upon it, and, by authority of the statute, such creditor may maintain the action before judgment. Section 2344, R. S. 1909; M. & T. Imp. Co. v. Jones, 143 Mo. 253, z-5 S. W. 41; Boland v. Ross, 120 Mo. 208, 2E S. W. 524.

But, in the instance of either a judgment creditor or an attachment creditor, the petition should allege that the plaintiff is one or the other. Otherwise it fails to state an essential requisite to a cause of action. In this case it appears from the petition that Plaintiff was a creditor, but there is no allegation whatever that it was an attachment creditor. It is plain that, if there is no cause of action set out in the petition, no ground is laid for a receiver, and none should be appointed. Cantwell v. Columbia Lead Co., 199 Mo. loc. cit. 42, 97 S. W. 167. In that case the Supreme Court said:

"This leaves nothing for decision except the single question: Does the petition state a cause of action for equitable relief and, as incident to that relief, the appointment...