Corbett v. Lincoln Savings & Loan Ass'n
| Decision Date | 24 March 1928 |
| Docket Number | 26698 |
| Citation | 4 S.W.2d 824 |
| Parties | CORBETT v. LINCOLN SAVINGS & LOAN ASS'N |
| Court | Missouri Supreme Court |
Ephrim Caplan and Abbott, Fauntleroy, Cullen & Edwards, all of St Louis, for appellant.
Vincent L. Boisaubin, of St. Louis, for respondent.
The appeal is from a judgment for defendant rendered after sustaining a demurrer to plaintiff's third amended petition, when plaintiff declined to plead further. The petition alleges as follows:
The plaintiff was the owner of four certificates in an organization known as the Lincoln Housing Trust. In May 1923, this court held that the business in which that company was engaged was without legal status in Missouri. Under that ruling the finance commissioner proceeded against all housing trusts doing business in the state of Missouri, except the Lincoln Housing Trust. In a suit pending in the circuit court of the city of St. Louis, Frank P. Millspaugh, finance commissioner, was appointed receiver, and employed counsel for the purpose of working out a plan to divert the assets of the Lincoln Housing Trust into the Lincoln Savings & Loan Association, defendant here.
At great length many circumstances are set forth concerning this new organization, the alleged Building & Loan Association, and its connection with other corporations and financial concerns, the purport of which is that a real building and loan association never was organized or put in operation in good faith; that the funds of the Lincoln Housing Trust, which went into the hands of Millspaugh, receiver, and were transferred to the alleged Building & Loan Association, were misspent and misappropriated. On the four certificates held by plaintiff in the Housing Trust he had paid $ 2,070, and had borrowed in one loan $ 403, and in the other loan $ 873.60, and had pledged in each case two of said certificates. Subtracting the amounts of the two loans from the face value of the certificates so pledged, there remained due him for which he was entitled to certificates in the Building & Loan Association, $ 317, and $ 521.40, respectively. The defendant failed and refused to issue to him Building & Loan certificates in lieu of the former said Housing Trust certificates, although it had printed and circulated a form of certificate which it promised to issue to subscribers. Defendant had offered to pay plaintiff $ 286.86 in settlement of his claim which plaintiff refused.
It was further alleged upon information and belief that the finance commissioner had been temporarily suspended and a vacancy exists in said office; that, by reason of such extraordinary condition and emergency, the usual functions of the said department of finance are impossible, and only the court, in the exercise of equitable jurisdiction, can be invoked in the protection of petitioner's rights. Millspaugh had declared himself satisfied with the status and condition of defendant and the purposes and intention of its incorporators and directors, and any demand upon Millspaugh as finance commissioner to act in the protection of the interests of the certificate holders would be futile.
'Plaintiff further stated that he brings this action for himself and numerous other certificate holders similarly situated.'
The remedy asked was this:
'Inasmuch as plaintiff is without adequate remedy at law and can have relief only through the aid of this honorable court, plaintiff respectfully prays for equitable relief as follows:
'(1) That this court decree that defendant credit plaintiff with a membership certificate for the sum of five hundred twenty-one dollars and forty cents ($ 521.40) and a membership certificate for the sum of three hundred seventeen dollars ($ 317.00).
'(2) That this court decree that defendant shall duly note and accredit plaintiff as being entitled to withdrawal values, respectively, of five hundred twenty-one dollars and forty cents ($ 521.40) and three hundred seventeen dollars ($ 317.00).
'(3) That this court decree that an accounting be had of the monthly receipts of defendant from the time of its inception to the time of a hearing upon the merits hereof for the purpose of ascertaining and determining to what extent, if any, withdrawal demands prior to those of plaintiff have been or should be paid, and what proportion, if any, of plaintiff's demand can and should be paid.
'(4) That defendant be enjoined from taking any action to declare or enforce the forfeiture against plaintiff or any other member by reason of nonpayment of monthly payments up to the present time, and to such time as the legal status of defendant be determined and the rights of members as created by the representations of defendant as inducement to convert from the Lincoln Housing Trust into defendant company be determined.
'(5) That pending final decree this court decree that defendant be enjoined and restrained from using or applying any of its monthly receipts for the lending of any money or for any purpose other than payment of necessary operating expenses and of paying withdrawals in their regular order until such time as the withdrawal to which plaintiff is entitled shall have been paid in full.
and that the receiver proceed with other details in respect to his duties in the premises.
To that petition a demurrer was filed at the February term, 1925, of the St. Louis circuit court, for seven stated reasons. The second is this:
'(2) Under the allegations of the petition the plaintiff has not the right to maintain this action.'
The third, at greater length, is that the finance commissioner of Missouri has charge of the execution of laws relating to building and loan associations, and the exclusive right to institute proceedings such as this.
Fourth, the petition does not allege that the plaintiff or any one in his behalf endeavored prior to the institution of the suit to obtain redress of grievances through the action of the secretary of state, finance commissioner, or Attorney General of Missouri, or through the action of defendant corporations.
The demurrer to the third amended petition was sustained on the second, third, and fourth assignments.
I.We are unable to find that we have jurisdiction of this appeal. We cannot have jurisdiction on account of the amount involved. The remedy asked is that the plaintiff be credited with a membership certificate for $ 521.40, and a membership certificate for $ 317, and that the plaintiff be adjudged entitled to withdraw those sums from the defendant.
The prayer asking for a receiver is for the purpose of preventing a multiplicity of suits and protecting the interest of creditors until his claim can be adjusted.
The petition states that the plaintiff brings his action for himself and numerous other certificate holders similarly situated. But there is no allegation in the petition as to how much, if anything, may be due to other certificate holders (if any) similarly situated, nor is there anything in the record indicating that other certificate holders joined in the proceeding; no allegation which by any interpretation could bring the amount involved within the jurisdiction of this court.
II.But it is claimed that a constitutional question is involved because the ...
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