Frazier v. Radford

• Decision Date: 06 December 1926
• Citation: 23 S.W.2d 639,225 Mo.App. 1104
• Parties: JESSE FRAZIER, RESPONDENT, v. LLOYD RADFORD ET AL., APPELLANTS
• Court: Kansas Court of Appeals

23 S.W.2d 639

225 Mo.App. 1104

JESSE FRAZIER, RESPONDENT, v. LLOYD RADFORD ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

December 6, 1926

Appeal from the Circuit Court of Randolph County.--Hon. A. W Walker, Judge.

AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

Roy McKittrick for respondent.

Lamb & Lamb for appellants.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is a suit in equity whereby plaintiff sues in his own behalf and as the assignee of eight claims against defendant for labor done and material furnished in the fulfilment of a certain contract hereinafter mentioned. The defendant Bee Branch Drainage District, as its name implies, is a drainage district, and is incorporated under the laws of the State of Missouri.

On August 5, 1922, the said district entered into a contract with the Central Construction Company, a partnership composed of the individual defendants herein, by which the construction company agreed to do the work necessary to carry out a plan of reclamation which had been adopted by the district. Prior to the commencement of the work, the said construction company, with the written consent of the district, assigned its contract to the R. W. Cooper Engineering Company. The said engineering company, in December, 1922, began the work of reclamation under the assigned contract and continued it until June, 1923, when the work was abandoned by that company but was completed in November, 1923, by the construction company. While the engineering company was engaged in the performance of the contract, it employed plaintiff and his assignors to perform certain work and furnish certain materials for which they were unable to obtain payment, either from the engineering company or the other defendants. The suit was instituted in nine counts, each of which covers the claim of an individual who did certain work and furnished materials as set forth.

The petition seeks to hold the individual defendants liable for the demands sued for and to have judgment against them satisfied out of certain money alleged to be in the hands of the district and due said defendants on account of the work, and asks that the drainage district be restrained from paying out any money in its hands to said defendants, and that it be ordered to pay plaintiff out of said money belonging to said defendants the sums sued for, with interest and costs. The court rendered a decree against the individual defendants on each of the nine counts, adjudging that plaintiff recover from them "out of the funds in the hands of the drainage district," ordering the amount paid to plaintiff within thirty days, restraining said defendants from collecting from the district and the district from paying them the amount found to be due plaintiff.

Personal service was had upon defendant English and plaintiff sought to get service by publication on the other individual defendants. The affidavit upon which the order of publication was based was attacked by defendants Lloyd Radford and J. W. Radford in the trial court by the filing of a plea to the jurisdiction and a motion to quash the service on them on the ground that the affidavit on which the order of publication was based did not give the court jurisdiction of such defendants. There was no personal appearance of said two defendants at the trial. Among other things, the affidavit alleges that:

". . . this affiant has good reason to believe, and does believe that the defendants, Lloyd Radford and J. W. Radford are nonresidents of the State of Missouri; that the said defendants Lloyd Radford and J. W. Radford have concealed themselves so that the ordinary process of law cannot be served upon them."

The affidavit is unquestionably defective, under the rulings of the Supreme Court, and no jurisdiction was conferred over the defendants Lloyd Radford and J. W. Radford. The allegation that said defendants were nonresidents is inconsistent with the statement that they had concealed themselves so that the ordinary process of law could not be served upon them; the last allegation has reference to residents of the State and not to nonresidents. [Coombs v. Crabtree, 105 Mo. 292, 297, 16 S.W. 830.] The allegations of nonresidence and of concealment are contradictory and nullify each other as completely as if neither had been written in the affidavit. For this reason there is no allegation in the affidavit which authorized the order of publication, and the judgment against said two defendants is void. [Hinkle v. Lovelace, 204 Mo. 208, 220, 102 S.W. 1015.]

Defendants urge that in this situation the effort to sustain an equitable garnishment against the drainage district must fail. We think this position untenable. It is true that under the common law contracts of parties were joint and not joint and several. However, our statutes have changed the common-law rule and declared such contracts joint and several, so that suits may be prosecuted against any one or more of those liable. Section 2155, Revised Statutes 1919, provides:

"All contracts which by the common law are joint only shall be construed to be joint and several."

And Section 2158 provides:

"In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable."

In construing these sections, the Supreme Court in Bagnell v. Railway Co., 242 Mo. 11, 20, said:

"Conceding that at common law, the contract as stated in the petition was a joint one, as was held on the former appeal, yet under the express provisions of Section 2769, Revised Statutes 1909, which was enacted long prior to the date of this contract, all contracts which, by the common law, are joint only, are declared to be joint and several; and by Sections 1981 and 2772, Revised Statutes 1909, it is provided that in all cases upon joint obligations and joint assumptions of copartners or others, suits may be brought against any one or more of them, and that in all such actions the plaintiff shall not be nonsuited by reason of his failure to prove that all the defendants are parties to the contract, but may have judgment against such of them as he shall prove to be parties thereto.

"Under the provisions of those sections of the statute, and the numerous decisions of this court construing them, for all practical purposes, all contracts which at common law were joint only are now joint and several, and any one or more of the obligees thereto may be sued, and a recovery had against those only who the evidence shows are liable thereon."

To the same effect is Stanley v. Whitlow, 181 Mo.App. 461, 465, 168 S.W. 840, an opinion by this court. Since, under these decisions, plaintiff had a right to sue and obtain judgment against English alone and since English had a contract with the drainage district for his benefit and that of his assignors, it is clear that he had a right to an equitable garnishment against the drainage district, and his failure to obtain proper service against defendants Lloyd Radford and J. W. Radford did not destroy his right to collect his debt from English who was liable, under the rule, for the entire sum; or his right to compel the drainage district to apply the money due English and his partners in payment thereof. This being a suit in equity the court had jurisdiction of both English and the property belonging to the partnership. The decree and judgment of the trial court shows English to have been insolvent and that the Central Construction Company had no property in Missouri. In this state of affairs the partnership is dissolved and a court of equity has been called upon to liquidate its affairs.

The partner English is entitled to have all of the partnership assets used in payment of the partnership debts, and plaintiff is subrogated to the rights of English therein. Directly in point is the opinion of the Supreme Court in Wade v. Bank, 221 S.W. 364, 371, where it is said:

"The partners themselves do not have any specific lien on the property. Each, however, has as against the other the right to have the partnership properly applied to the payment of the partnership debts, and this right or equity under certain circumstances inures to the benefit of firm creditors. But as to such creditors this equity is a derivative one. It is not held or enforceable in their own right. It is practically a subrogation to the equity of the individual partner, . . . When a court of equity is called upon to wind up and liquidate a partnership, whether upon dissolution by death or insolvency, or upon other grounds involving its jurisdiction, it enforces a right in favor of the firm creditors to have their debts first paid out of the partnership assets before any application thereof is made to the payment of the debts of the individual creditors or any distribution is made among the partners."

This opinion further states, 221 S.W. 364, 371:

"While it might be inferred from the history of the transaction as a whole as narrated in the pleadings that the pledged property constitutes all the partnership assets, such inference is not a necessary one, and there is no averment that such is the fact; nor does it appear from either that the firm is insolvent; . . . There is nowhere in either an allegation that the court has acquired, or a suggestion that it should assume jurisdiction of all of the partnership property for any purpose; . . ."

There being no question of waiver in the case at bar, English had the right to have the partnership assets applied to the payment of the partnership debts. The petition alleged and the trial court found that the money held by the drainage district is all the assets of the partnership in the State;...