Fidelity Trust Co. v. Mexico, S. F. & P. Traction Co.

• Decision Date: 30 March 1917
• Docket Number: No. 18497.,18497.
• Citation: 194 S.W. 52,270 Mo. 487
• Court: Missouri Supreme Court
• Parties: FIDELITY TRUST CO. v. MEXICO, S. F. & P. TRACTION CO.

194 S.W. 52

270 Mo. 487

FIDELITY TRUST CO. v. MEXICO, S. F. & P. TRACTION CO.

No. 18497.

Supreme Court of Missouri, Division No. 1.

March 30, 1917.

Error to Circuit Court, Audrain County; James D. Barnett, Judge.

Action by J. D. Bates and others against the Mexico, Santa Fé & Perry Traction Company and others. From the judgment, the Fidelity Trust Company brings error. Writ of error quashed, and proceeding dismissed.

This controversy is here upon writ of error to the circuit court for Audrain county, and the question of the sufficiency of the writ stands at the door of its consideration. It is as follows, omitting the attestation which is regular:

"The State of Missouri—ss.: The State of Missouri, To the Judge of the Eleventh Judicial Circuit in said State, Greeting: Whereas, in the record and proceedings in a certain cause lately pending in the circuit court of Audrain county, wherein J. D. Bates et al. were plaintiffs and Mexico, Santa Fé & Perry Traction Company et al. were defendants in a civil action, manifest error hath intervened to the great damage of the said Fidelity Trust Company, one of the above plaintiffs, as by its complaint we are informed, now we, being willing that the error, if any there be, should be corrected, and full and speedy justice done to the parties aforesaid, in that behalf command you that you send to us, certified under your seal a perfect transcript of the record and proceedings in the cause aforesaid, or in lieu of such transcript, a certified copy of the record entry of the judgment order or decree, showing the term and day of the term, month and year upon which the same shall have been rendered, as the plaintiff in error shall direct, as fully as the same remain of record before you in said court, so that we may have them before us at our Supreme Court, to be begun and held at the city of Jefferson, in the county of Cole in said state on the second Tuesday in October, next, so that our Judges of our Supreme Court on inspecting the record and proceedings aforesaid, may cause to be further done therein, for correcting the error, what of right and according to law ought to be done, and have you then and there this writ."

Prior to its issuance the Fidelity Trust Company requested J. D. Bates, W. W. Mundy, L. E. Botts, J. A. Botts, J. S. Brown, D. B. Guthrie, J. P. Cauthorn, C. C. Heizer, and W. W. Botts to join with it in the application for the writ, all of whom refused to do so. After the issuance of the writ, and more than 20 days before the return day named in it, the said Fidelity Trust Company caused a notice in writing of its issuance to be served on the following persons and corporations: Mexico, Santa Fé & Perry Traction Company; W. W. Botts, receiver of said Company, J. S. Brown, trustee, S. L. Robertson, Mathias Crum, Butler Manufacturing Company, Bates Machine Company, Coatsworth Lumber Company, and Crane Company. This notice concludes as follows:

"The plaintiff in error, Fidelity Trust Company, was one of the plaintiffs in case J. D. Bates et al. v. Mexico, Santa Fé & Perry Traction Company et al., the other plaintiffs refused to join in the writ of error. The return day of such writ of error is the first day of the October term, 1914, of the Supreme Court, the same being Tuesday, October 13, 1914."

The transcript which constitutes the return to the writ is entitled as follows: J. D. Bates et al., Plaintiffs, v. Mexico, Santa Fé & Perry Traction Company et al., Defendants, while the original petition which constitutes its first entry is entitled as follows: J. D. Bates, W. W. Mundy, L. E. Botts, J. A. Botts, J. S. Brown, D. B. Guthrie, J. P. Cauthorn, C. C. Heizer, and W. W. Botts, Plaintiffs, v. Mexico, Santa Fé & Perry Traction Company, a corporation and Fidelity Trust Company of Kansas City, a corporation, defendants. The petition was filed in the Audrain circuit court, January 28, 1913, and alleged that the plaintiffs owned a total of 137 bonds of the traction company (each in the sum of $250 or a total of $34,250); that the interest thereon was in default; that the traction company was insolvent; that the company's property was in danger of being lost; and asked that a receiver be appointed to administer it, and that the deed of trust to the Fidelity Trust Company, trustee, be foreclosed. It also stated, in substance, that the Fruin-Bambrick Construction Company had a judgment against the traction company for the sum of $47,900.47, and that great doubt existed as to whether or not it constituted a lien superior to that of the bonds on the property of the traction company, and asked that the receiver take immediate charge of the property, and for its sale and for the adjudication of the priority of the several liens. A receiver was appointed on March 3, 1913, and on the 28th day of the same month the Fidelity Trust Company filed its answer, setting out that by the provisions of the deed of trust it had the exclusive right to institute and maintain the foreclosure suit and asking that it be discharged as a defendant, which was done. In the meantime intervening petitions were filed by parties claiming small construction liens upon the railway company, and who are, with the exception of J. S. Brown, trustee, the same parties who were notified of the issuance of the writ of error. On April 21, 1913, the court...