Cox v. Volkert

• Decision Date: 31 October 1885
• Citation: 86 Mo. 505
• Parties: COX, Receiver, v. VOLKERT, Appellant.
• Court: Missouri Supreme Court

86 Mo. 505

COX, Receiver,

v.VOLKERT, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Smith & Krauthoff for appellant.

(1) The plaintiff had no right to maintain this suit. ( a) There was no authority to appoint a receiver in the case of Huegel v. Wallendorf. General powers in this respect in equity are limited by the statute. High on Receivers, sec. 23; Fellows v. Heermans, 1 Abb. Pr. (N. S.) 1; Newman v. Hammond, 46 Ind. 119. Cox was not appointed for the purposes named in sections 3660 and 3661, Revised Statutes. Gill v. Balis, 72 Mo. 424. ( b) If the order appointing Cox receiver is not void, yet it did not and could not confer upon him the power to maintain this action. He is not the real party in interest, nor an executor or administrator, nor the trustee of an express trust. R. S., secs. 3462, 3463; State ex rel. v. Gambs, 68 Mo. 289. The receiver only had authority to sue for debts existing at the time of the appointment. State ex rel. v. Gambs, 68 Mo. 289; Hannah v. Bank, 67 Mo. 678. The receiver's right to sue must be founded in the statute, if at all. The order of the court appointing him could not enlarge his power beyond that which the law gave him, nor could the consent of parties. Hannah v. Bank, supra; Freeman v. Winchester, 18 Miss. 677. Unless authorized by statute a receiver cannot sue; he had no power to sue under the equity practice. State ex rel. v. Gambs, 68 Mo. 296, separate opinion of Judge Henry and cases cited; Justice v. Kirlin, 17 Ind. 588; Manlove v. Burger, 38 Ind. 22; Freeman v. Winchester, 18 Miss. 577; Battle v. Davis, 66 N. C. 252; Screven v. Clark, 48 Ga. 41. ( c) The right of the plaintiff to sue was an issuable fact. The authority claimed was required to be duly alleged, and having been denied it devolved upon plaintiff to show it. High on Receivers, secs. 208, 231; White v. Joy, 3 Kern. 83; Bangs v. McIntosh, 23 Barb. 591; Coope v. Bowles, 42 Barb. 87; Screven v. Clark, 48 Ga. 41. This point does not stand waived. A plaintiff must allege a cause of action in his favor. 13 Mo. 532; 39 Mo. 373; 65 Mo. 105; 35 Mo. 373. And, unless he does so, the petition states no cause of action, and the objection can be made at any time. 38 Mo. 489; 52 Mo. 333; 53 Mo. 141; 65 Mo. 105 and 528; 67 Mo. 289; 21 Wis. 678; 28 N. Y. 242; 39 Ind. 165. The motion to strike out parts of the answer was practically a demurrer. 54 Mo. 400; 63 Mo. 19; R. S., sec. 3524. It went back to the petition and raised the question of its sufficiency. 57 Mo. 184; 10 Peters, 257; 14 B. Mon. 544; 39 Wis. 345; 51 Me. 414. This objection is not one of “legal capacity to sue,” but that the plaintiff has no cause of action, nor any interest in the matter sued. 35 Mo. 373; 65 Mo. 105; 32 N. Y. 397; Catholic Church v. Tobbein, 82 Mo. 418. (2) The court erred in striking out the portions of defendant's answer in brackets. In actions by receivers “no right of defence shall be impaired.” R. S., sec. 428. The rights of the parties are not changed by his appointment. High on Receivers, secs. 204, 205. Coope v. Bowles, 42 Barb. 87; Williams v. Babcock, 25 Barb. 109. The same defences can be made, and with like effect as against the parties themselves. Bank v. Peck, 29 Conn. 384; Bell v. Shibley, 33 Barb. 610. The defendant is entitled to the same off-sets and counterclaims. High on Receivers, secs. 247, 248; Colt v. Brown, 12 Gray, 233; Berry v. Brett, 6 Bosw. 627; Van Wagoner v. Gas Light Co., 3 Zab. 283; Curtis v. Leavitt, 15 N. Y. 9, 42, et seq. (3) Defendant's answer is not “inconsistent pleading,” such as is condemned by law. Nelson v. Brodhack, 44 Mo. 596; McAdow v. Ross, 53 Mo. 199; Rhine v. Montgomery, 50 Mo. 566; Bell v. Brown, 22 Cal. 671, 676, et seq.

A. M. Hough and Edwards & Davison for respondent.

There being no instructions preserved in the bill of exceptions, there is no question of law presented or saved in a manner which this court can review, and it will not undertake to weigh the evidence, to determine whether it justified the finding of the trial court. Easley v. Elliott, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Wielandy v. Lemuel, 47 Mo. 322. Courts of equity have power to appoint receivers to take charge of partnership affairs. Whether the court had the power or not to appoint a receiver in this case, it undoubtedly had jurisdiction of the subject-matter and parties, and by consent could appoint some one to take charge of the estate, and collect the debts, etc., and this was all that was done in this case, and this appellant, who was a party to the proceeding, consented to the plaintiff's taking charge of, and collecting the rent, and whom he repeatedly recognized as receiver, and cannot now, at this late day, be heard to complain. The order appointing Cox receiver, is a judgment of the court, entered by the consent of all the parties to the suit, including this appellant, and that judgment cannot be attacked in this proceeding. It is well settled in this state that a judgment, regular on its face, cannot be attacked collaterally. Herndon v. Hawkins, 65 Mo. 265; Holt County v. Harmon, 59 Mo. 165; Bailey v. McGinnis, 57 Mo. 362; High on Receivers, sec. 203, p. 134; Vermont & Canada Ry. Co. v. Vermont Central Ry. Co., 46 Vt. 792. Submitting to the appointment of a receiver by those who were before the court, and had a right to object, and who could have appealed from the order if dissatisfied with it, but did not, is such an acquiescence in the order as renders it the law of the case, with respect to the right to have a receiver. High on Receivers, sec. 37; Post v. Dorr, 4 Edw. ch. 412. The authority to appoint a receiver in the case of Huegel v. Wallendorf cannot be raised in this proceeding. The regularity of a receiver's appointment, or the competency of the person appointed, cannot be called in question in a collateral proceeding. It is immaterial whether the order of appointment was erroneous or improper; while it is a subsisting order the receiver will be sustained in his possession of the property. High on Rec'rs, sec. 203; Railroad v. Railroad, 46 Vt. 792. The appointment of a receiver in the settlement of partnership affairs, falls within that class of incidental powers which courts, having jurisdiction over such cases, have full authority to exercise. It is a legitimate exercise of the jurisdiction of a court of equity. High on Rec'rs, sec. 472; Sayler v. Mockbie, 9 Iowa, 209; Gridley v. Conner, 2 La. An. 87; Story on Partnership, sec. 330. The objection that plaintiff has no right to sue cannot be raised in this court for the first time. It should have been raised by demurrer or answer, and failing to do that it is waived. Gimbel v. Pignero, 62 Mo. 240; Kellogg v. Martin, Ib. 429; Rickey v. Tenbroek, 63 Mo. 563. All those portions of defendant's answer stricken out, were properly stricken out. That embraced in bracket number seven is pleaded conditionally, which is not allowable. Bank v. Wagner, 39 Mo. 387; Robinson v. Price, 20 Mo. 229.

BLACK, J.

Huegel, Wallendorf, and Blume, were partners in the milling business, and as such partners built the Pacific Mill in Jefferson City. Wallendorf died, and his executrix, and the other partners, leased the mill to defendant, Volkert, for a period of four years from September 1, 1878. Huegel and Blume filed their petition in the circuit court, the object of which was to procure an accounting, sale, and division of the partnership property, in which suit the executrix and devisees of Wallendorf, and the defendant herein, were made defendants. By consent of all the parties in that suit, Cox was appointed receiver. The defendant, the lessee, paid some six hundred dollars on the lease, and the receiver brought this suit to recover a balance of some one thousand and two hundred dollars rents, alleged to be still due on the lease.

1. It is wholly immaterial whether section 3660, Revised Statutes, conferred upon the circuit court authority to appoint a receiver or not. That court had original jurisdiction in all matters of equity. The power of the court to appoint a receiver in the settlement of partnership affairs, is beyond all question. 1 Story's Equity, sec. 672; Adam's Eq. 517; Collyer on Part. 353. This power is inherent in the court, and not dependent upon any statute. No statute deprives the court of that power; hence it had the authority to make the appointment in this case. Whether the court properly exercised the power, cannot be inquired into in this proceeding. The appointment gave the receiver “full power to collect the rents, take care of and preserve the same.” This is sufficient authority to collect the rents to become due after the appointment, as well as to collect those due at the date of the appointment. He brought this suit in the court by which he was appointed and prosecutes the same with its sanction, and that is sufficient without producing any express order so to do.

2. Much of the amended answer was stricken out on the ground of alleged inconsistency in this, that it both admitted and denied the execution of the lease. This is a misconception of the purpose and scope of the pleading. It expressly admits that defendant made the lease. This admission must be understood to run through the whole defence, and all parts of the answer. Besides, the counter-claims are based upon the provisions of the lease, and thus, again, its execution is conceded. The fact that defendant may plead the legal effect of the lease differently from the plaintiff does not deny the execution of the lease. The appointment of the receiver did not affect the defendant's rights under the lease. 2 Dan. Ch. Pr., 1407, note 2; 2 Barb. Ch. Practice (2. Ed.) 659. Whatever defences, counter-claims, or set-offs, defendant would have had in a suit by the lessors on this lease, are available to the lessee in a suit by the receiver. The receiver can occupy no better position than those for whom...