De Field v. Harding Dredge Co.

• Decision Date: 02 June 1914
• Docket Number: No. 1201.,1201.
• Citation: 180 Mo. App. 563,167 S.W. 593
• Parties: DE FIELD v. HARDING DREDGE CO. et al.
• Court: Missouri Court of Appeals

167 S.W. 593

180 Mo. A. 563

DE FIELD v. HARDING DREDGE CO. et al.

No. 1201.

Springfield Court of Appeals. Missouri.

June 2, 1914.

1. CREDITORS' SUIT (§ 8) — EQUITABLE ATTACHMENT —ABSENT DEBTOR.

A suit in equity, in the nature of an equitable attachment, may be maintained by a creditor, a citizen of the state, to reach a fund owing his debtor, a foreign corporation, which is insolvent, has ceased to do business in the state, and has withdrawn all its property, except such fund, from the state.

2. CREDITORS' SUIT (§ 8) — EQUITABLE ATTACHMENT —MUNICIPAL CORPORATIONS.

Rev. St. 1909, § 2415, exempting a municipal corporation from garnishment, does not prevent maintenance of a suit in equity, in the nature of an equitable attachment, to reach funds owing for completed work by a municipal corporation to a foreign corporation, debtor of plaintiff, a citizen of the state, the foreign corporation being insolvent, having ceased to transact business in the state, and having withdrawn all its property, except such fund, from the state.

3. CREDITORS' SUIT (§ 11) — EQUITABLE ATTACHMENT —PRIOR JUDGMENT.

One need not first obtain a judgment against his debtor, a foreign corporation, which has ceased to do business in the state, is insolvent, and has withdrawn from the state all its property, except a fund owing to it, before he can maintain a suit in equity, in the nature of an equitable attachment, to reach such fund.

4. PLEADING (§§ 193, 368) — DUPLICITY — REMEDY.

The ground of demurrer to a petition provided by Rev. St. 1909, § 1800, "that several causes of action have been improperly joined" is only for uniting in the petition causes of action which section 1795 does not authorize to be so united; and where several causes of action, which might be united in the petition by separate counts, are joined in one count, the remedy is by motion to require them to be separately alleged.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Suit by Clarence S. De Field against the Harding Dredge Company and another. From a judgment, on the sustaining of a demurrer of defendant Drainage District No. 25 of Mississippi County, to the petition, plaintiff appeals. Reversed and remanded.

Russell, Deal & Joslyn, of Charleston, for appellant. Boone & Lee and J. M. Haw, all of Charleston, for respondent Drainage Dist. No. 25.

ROBERTSON, P. J.

The plaintiff appeals. The court sustained the demurrer of the defendant drainage district to the petition, plaintiff elected to stand thereon, and the court rendered judgment against him.

The petition was filed August 9, 1913, and alleges that, for more than ten years prior thereto, plaintiff had been and was then a resident citizen of Mississippi county; that the defendant Harding Dredge Company was at the dates therein mentioned and then a foreign corporation created and organized under the laws of the state of Indiana, authorized to do business in this state, and that the defendant drainage district was a municipal corporation created and existing under and by virtue of the laws of this state relating to the drainage of swamp and overflowed lands; that prior to August 15, 1910, the defendant dredge company was engaged in constructing drainage ditches in Mississippi and New Madrid counties, and that the plaintiff had a running account with the dredge company for work and labor done and material furnished it while it was engaged in executing its said work, and that on the 15th day of August, 1910, he had a settlement with it, at which time the account was stated, and upon said settlement it was ascertained that it was indebted to him in the sum of $1,356.52; that, while said dredge company was engaged in executing its said work, he performed labor and furnished material for it amounting to $1,040, as shown by a statement thereto attached; that since the date of the last item, October, 1911, the dredge company have had no property in this state which was subject to execution, and was at the date of the filing of said petition, and had been since September 21, 1911, at which latter date in a suit pending in the circuit court of Knox county, Ind., adjudged insolvent, and all of its property and assets of every kind within the jurisdiction of said court was placed in the hands of a receiver, which were wholly insufficient to pay its creditors within said state of Indiana; that said dredge company, after having been authorized to transact business in this state, entered into a contract with the defendant drainage district to construct ditches for said district, which said contract was fully executed by the defendant dredge company and accepted in its behalf, and that said drainage district was then indebted to said dredge company in the sum of $3,200, the balance due on the contract price for said work, which said sum is held in behalf of the said district; that said dredge company is no longer engaged in business in the state of Missouri and is attempting to obtain the amount due it from the drainage district and remove the same from the jurisdiction of the courts of this state and subject the same to the payment of claims of creditors of said dredge company in the state of Indiana; that had the plaintiff obtained judgment against the dredge company, there were no assets in this state belonging to the said dredge company upon which an execution could be levied; and that the amount of $2,396.52 was then due the plaintiff, for which he had demanded payment. The petition then prays judgment against the dredge company for said amount, and that the money now due the defendant dredge company from the defendant drainage district be impounded and ordered paid to the plaintiff for the amount due it from the dredge company.

The demurrer filed in behalf of the defendant drainage district alleges as grounds therefor, which are insisted on here, the following: That the bill does not state a cause of action; that the petition does not state facts sufficient to entitle plaintiff to the equitable relief claimed, and generally the petition states no equity; that the petition on its face shows that the plaintiff...