D. C. Wise Coal Co. v. Columbia Lead & Zinc Co.

• Decision Date: 05 March 1907
• Citation: 123 Mo. App. 249,100 S.W. 680
• Court: Missouri Court of Appeals
• Parties: D. C. WISE COAL CO. v. COLUMBIA LEAD & ZINC CO.

100 S.W. 680

123 Mo. App. 249

D. C. WISE COAL CO. v. COLUMBIA LEAD & ZINC CO.

St. Louis Court of Appeals. Missouri.

March 5, 1907.

Rehearing Denied March 19, 1907.

1. ATTACHMENT — DISCHARGE — FORTHCOMING BOND—APPROVAL BY COURT—NECESSITY.

Rev. St. 1899, § 413 [Ann. St. 1906, p. 501], requires a forthcoming bond, given to secure the discharge of an attachment, to be approved by the court where the attachment suit is pending, and contemplates that the court, on the approval of the bond, will make an order dissolving the attachment, and an order on the sheriff to release the attached property. A forthcoming bond, delivered to the sheriff of the county where an action was commenced to secure the discharge of the attachment, was never presented to or approved by either the court in the county where the action was commenced, or where it was taken on a change of venue. Held, that the attachment was not thereby dissolved, and hence a special execution was proper upon the judgment in the action; the proceedings being otherwise valid.

2. BANKRUPTCY—EFFECT OF ADJUDICATION— DISCHARGE OF ATTACHMENT.

Under Bankr. Act, July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], providing that "all levies, judgments, attachments or other liens, obtained through legal proceedings, against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt," where a creditor levies an attachment on the property of an insolvent debtor, and within four months thereafter he is adjudged bankrupt, on a petition filed by other creditors, alleging the existence of certain grounds of bankruptcy, including the fact of his insolvency, the lien of such attachment is thereby dissolved, and hence a judgment of a state court, rendered subsequent to the adjudication, in so far as it sustains the attachment and orders a levy and sale thereunder, is void.

3. SAME—RELEASE OF SURETY.

A voluntary or involuntary adjudication of bankruptcy as a general proposition does not release the surety of a bankrupt from his obligation as surety.

4. JUDGMENT—OPENING OR VACATING—TIME FOR PROCEEDINGS.

Where defendant has been personally served and has filed its answer, and there is a judgment by nil dicit, a motion to vacate or set the same aside, filed after the term at which the judgment is rendered, comes too late to reach any mere irregularity in the judgment or in the proceeding by which it was obtained.

5. SAME.

A judgment rendered without jurisdiction, in an action in which an attachment has been issued, sustaining the attachment, may be attacked after the term at which it was rendered by a motion to vacate and set the same aside, supported by affidavits or evidence.

6. SAME—PARTIES.

A trustee of a bankrupt's estate was not an unnecessary party to a motion made to vacate and set aside a judgment purporting to effect a lien of attachment, and to enforce the same against the identical property of which he held the proceeds as trustee.

Appeal from Circuit Court, Newton County; Henry C. Pepper, Judge.

Action by the D. C. Wise Coal Company against the Columbia Lead & Zinc Company. Judgment for plaintiff. From an order overruling a motion to set aside the judgment, and all orders emanating therefrom, defendant appeals. Reversed, and remanded with directions.

Geo. Hubbert, for appellant. Jno. T. Sturgis, for respondent.

BLAND, P. J.

On December 7, 1903, plaintiff commenced his suit against the Columbia Lead & Zinc Co., in the circuit court, by attachment, to recover a balance of $904.70, alleged to be due on account of coal sold and delivered to defendant. A writ of attachment was issued and delivered to the sheriff of Jasper county, by virtue of which that officer attached a lot of mining machinery, specifically described in the return indorsed on the back of the writ. Defendant was served with summons, and, at the return term of the writ, filed its plea in abatement of the attachment and its answer to the merits, admitting it was a corporation, but denying all other allegations of the petition, and at the same time filed its application for a change of venue, which was granted, and the venue changed to the Newton circuit court. At the April term, 1904, of the Newton circuit court, a judgment by default, sustaining the attachment, and on the merits, was rendered in favor of plaintiff and against defendant, and a special execution awarded against all the property attached. On January 29, 1904, defendant, as principal, and the United States Fidelity & Guaranty Co., as surety, executed to plaintiff a forthcoming bond for the attached property, which bond was approved by the sheriff of Jasper county. An execution was issued on the judgment, commanding the sheriff to levy upon and sell the attached property. The sheriff returned this execution nulla bona, whereupon the court, on October 14, 1904, made an order, requiring defendant to produce the attached property and deliver the same on or before October 24, 1904. It was further ordered that if defendant should fail to produce the property as directed, the sheriff of Jasper county should immediately assign the forthcoming bond to plaintiff. The attached property was not produced and the sheriff of Jasper county assigned the forthcoming bond to plaintiff, and afterwards, to wit, on December 12, 1904, plaintiff filed its motion, in the Newton circuit court, for judgment on the forthcoming bond. On the same day defendant filed its motion to set aside the judgment and the orders made thereunder. On the 17th day of the same month, the motion was taken up and heard and by the court overruled, and leave given to continue the motion for judgment on the forthcoming bond to the next term. At the next (the April, 1905) term the following motion (omitting caption) was filed:

"Now come the said defendant, and also B. D. Mowry, as trustee in bankruptcy of and for the said defendant company, and also the United States Fidelity & Guaranty Company, all of whom appear for the purposes of this application only, and by way of amendment of their several and respective applications of like nature heretofore filed herein at the preceding term of this court, and respectfully show to the said court that the above-entitled cause was instituted, and the attachment of the defendant's personal property herein was had, on the 7th day of December, 1903, and defendant was summoned and answered therein. That on the 25th day of March, 1904, certain creditors of the defendant company, viz., First National Bank of Galva, Illinois, the First National Bank of Caterville, Missouri, et al., presented and filed in the District Court of the United States for the Southwestern Division Judicial District of the Western District of Missouri, as a court of bankruptcy, their concurrent petition for the adjudication of the said defendant as a bankrupt, under the statutes and acts of bankruptcy of the United States, because of the existence of certain alleged grounds thereof, including the fact of defendant's insolvency. That thereon the said court did solemnly adjudicate the defendant company, on the 28th day of March, 1904, to be a bankrupt within the meaning and under the said statutes and acts, whereby said attachment was dissolved and made void; following which the said court did, on the 13th day of April, 1904, on petition of the said bankrupt, order and enjoin, as against plaintiff, its attorneys and agents, with other alleged creditors, complete stay and cessation of all and whatever proceedings against the property and effects of defendant, including the property attached as aforesaid, and all manner of interference therewith by any action in the state courts, including the above-entitled case and this court. That the said court did, on the 26th day of April, 1904, duly appoint and qualify B. D. Mowry to be trustee in bankruptcy of and for the defendant company and its property and effects, including the said attached property, which property the said trustee did forthwith take possession and charge of as such trustee under the orders and control of the said court of bankruptcy; and the plaintiff and its attorney of record, H. S. Miller, immediately and fully, were notified and advised of the said adjudication of bankruptcy and of the said restraining order of said court and expressed to defendant acquiescence therein. That, nevertheless, the plaintiff and its said attorney, fraudulently intending and contriving to circumvent the said bankrupt court, evade the bankrupt law and secure unfairly the equivalent of a preference over other creditors of the said bankrupt in respect of the said property, fraudulently, and in violation of the said restraining order, did appear in this court on the 20th day of April, 1904, without notice, summons, or intimation thereof to defendant, to the trustee in bankruptcy, or to other interested person, and moved the court to sustain the said attachment, enter irregular judgment against the defendant and the said property in the above-entitled cause, and then and there fraudulently refrained from disclosing to the court the aforesaid facts, and concealed from the court the said adjudication and restraining order, and procured the court [by fraud and deceit, and by presenting to the court the said attachment and representing the same to be valid and live attachment against the said property upon which the plaintiff falsely represented and pretended that it was entitled to judgment, etc., when they knew better], to enter illegal but formal judgment sustaining the said attachment as valid and binding upon the said property and to adjudicate against the said property, in rem, a debt of said bankrupt to plaintiff in the sum of $909.82 and costs of the action; all in pursuance of the said void attachment, which said judgment is found at page 125 of book 30 of this court's record. That,...