Appeal
from Jasper Circuit Court. -- Hon. E. C. Crow, Judge.
The
amended petition of the plaintiff, mentioned in the opinion
is substantially as follows, omitting caption and signature:
"PETITION.
"The
plaintiff, John M. Glover, for cause of action against the
defendant, The St. Louis Mutual Bond Investment Company
alias The Equitable Savings Investment Company, states:
"That
the said defendant is a corporation duly organized and
existing under and by virtue of the laws of the State of
Missouri; that its principal office and place of business is
now in Webb City, Jasper county, Missouri.
"That
the plaintiff herein on the 4th day of May, 1896, recovered a
judgment in the circuit court of the city of St. Louis
against the defendant for the sum of fifteen hundred dollars
with costs of suit, and that execution was duly issued
thereon, directed to the sheriff of Jasper county, Missouri
which execution is still in the hands of said sheriff
unsatisfied. Plaintiff further states that one G. S. Hoss
also, on the 24th day of March, 1896, recovered a judgment in
the circuit court of the city of St. Louis, against said
defendant, for the sum of two thousand dollars, under the
name of Equitable Savings Investment Company, of Webb City,
which name defendant often assumes and under which it
pretends to do business, and receives its mail, and pretends
to be winding up the business of the defendant; and execution
was duly issued on said judgment, directed to the sheriff of
Jasper county, Missouri, which execution is still in the
hands of said sheriff unsatisfied. And plaintiff alleges that
said sheriff has made diligent search and efforts to find
property or effects of said defendant, on which to levy said
executions; and plaintiff has, by himself and by his agents
and attorneys, made diligent investigation and inquiries to
discover any property, effects or assets of said company on
which to direct said sheriff to levy and has failed to find
any; and plaintiff alleges that the articles of incorporation
of the defendant provide and state that the principal office
and place of business of said company defendant shall be in
the city of St. Louis, but that defendant has removed its
said office from there to Webb City, Missouri, and does not
keep or maintain any office whatever at St. Louis; that if
defendant has any money, property or effects, it keeps the
same concealed, so that plaintiff can not find any trace
thereof, except as hereinafter stated. And plaintiff further
states that the defendant has been engaged in the issue and
sale of a certain kind of bonds for the sum of one thousand
dollars each, as well as other denominations, made to mature
capriciously by a scheme of numbers and multiples thereof to
be selected and fixed by the officers and agents of
defendant, so that some of said bonds may become due after a
small amount has been paid thereon for the full amount of
such bonds and others at more remote times and after much
more had been paid, or the whole amount thereof may be, which
business and scheme is in the nature of a lottery, illegal
and fraudulent, and said bonds so issued and sold are void,
and plaintiff alleges that under the conditions of such bonds
or policies so issued by said defendant a reserve fund was
established which fund amounts to the sum of fifteen thousand
dollars, which said sum has been wrongfully appropriated to
their own use by the officers of said defendant, and said
defendant had also accumulated the sum of fifteen thousand
dollars as earnings or profits, which also ought to be on
hand in the treasury of said company, which has also been
wrongfully misapplied and appropriated by the officers of
defendant to their own use, and particularly by J. W. Aylor,
the president of said company, and who owns all the stock of
said company, except one or two shares which he has placed in
the hands of his employees to make them eligible as directors
therein, so that said Aylor, president of said company
defendant, has absolute control of the same, the directors
being said J. W. Aylor, his son, B. C. Aylor, and J. J.
Nelson, his employee, so that it would be useless to apply to
said officers to bring suit in the name of the company to
recover said sums, so misappropriated and converted.
And if
it is claimed said funds are a trust fund for redemption of
said bonds or policies, then plaintiff says such bonds and
policies are illegal and void, wherefore such funds should be
applied to pay the legitimate debts of said defendant and
particularly of plaintiff's judgment herein set out. And
plaintiff further states that the only property or assets of
said defendant corporation that he can get any trace of that
is now in existence, since the misappropriation of said funds
above stated, is a certain mortgage bond or note for the sum
of one hundred thousand dollars, the sum of eighteen thousand
dollars of the waterworks bonds of Webb City, Missouri, and
the sum of twelve thousand, seven hundred and eighty dollars
in cash, all of which plaintiff charges is the property of
said defendant, and the same is all deposited by said
defendant with the State treasurer of the State of Missouri
and are in his custody and control, and which the defendant
claims and pretends is a trust fund to secure payment of said
fraudulent, illegal, and void bonds or policies, so issued by
defendant, wherefore, as plaintiff alleges, such bonds and
policies being fraudulent, illegal, and void, such property,
assets, and cash of defendant can not be held for such
purpose, but ought to go to pay the general bona fide
creditors of defendant, and particularly the judgment of
plaintiff; and further, even if such bonds and policies
should be held a valid claim against said assets to any
extent, still plaintiff alleges there would be sufficient
surplus, after taking up all of said bonds, now to pay
plaintiff's judgment as aforesaid. And plaintiff further
alleges that the defendant disguises and conceals its manner
of doing business by assuming a name different from its real
name as aforesaid, by keeping its office closed during
business hours, by concealing its books and records, and by
pretending that it is going out of business, or that it is
winding up its business; that its officers have refused to
make any effort to pay plaintiff's judgment, but have and
do claim that no part of its said assets and effects in the
custody of the State treasurer as aforesaid shall be applied
to the payment of plaintiff's judgment; and plaintiff
alleges from information and belief, that a large part of
said bonds or policies have been taken up or retired by
defendant or have been by it declared forfeited; so that
there would be sufficient surplus in any event to pay
plaintiff's judgment after all of said outstanding bonds
shall have been paid. And plaintiff says that he has no
remedy by the strict rules of the common law to reach said
assets and effects of defendant, and that the only way the
same can be reached is by the process and decree of a court
of equity; that said company defendant is totally insolvent
outside of said assets and effects in the hands of the
treasurer of State of the State of Missouri.
"Wherefore
plaintiff prays that a receiver may be appointed to wind up
the affairs of said company, the corporation defendant
herein, to receive said moneys and assets in the hands and in
the custody of the Treasurer of State as aforesaid, and to
recover from said officers of said defendant corporation the
funds so misappropriated by them and converted to their own
use, and to subject such assets and funds to payment of all
the just debts and obligations of said defendant, and
particularly the payment of the judgment obtained by
plaintiff as aforesaid; and for such other and further relief
as plaintiff may be entitled to in equity and good
conscience."
The
order appointing the receiver is as follows (omitting
caption):
"ORDER.
"This
cause coming on to be heard upon the complainant's motion
for a receiver in vacation, and it appearing that the
petition herein has been filed with the judge of this court
in vacation, it is by the judge of this court ordered
adjudged and decreed that the prayer be sustained and W. S
Chinn is by the judge of this court appointed receiver of all
and singular the money, property, effects, assets and
accounts, notes, bills and evidences of debts, paper books
and other property of every kind and character in any way
connected with or belonging to the defendant company; to have
and to hold the same subject to the direction and control of
the court, and the defendant company, its officers, agents,
servants and employees are commanded and required to
forthwith transfer and deliver over under oath to said
receiver all and singular the books, papers, notes, evidences
of debt, accounts, moneys, credits, contracts, ledger and
effects of every kind or character in their possession or
under their control, and said receiver is ordered and
directed to take into his possession all of such assets,
books, papers, and property and hold the same subject to
order of court, and he is required and directed to collect
all money and profits, if any, now due the defendant company,
or to become due, and to collect all claims and choses in
action, of every kind or character, and he is authorized and
empowered to prosecute and bring all suits and legal
proceedings as may be necessary or advisable in the
performance of his duties, and to defend all suits or
proceedings brought against him as receiver or in anywise
affecting the property, in his hands, and said...
