Hammar v. St. Louis Motor Carriage Co.
| Decision Date | 21 February 1911 |
| Citation | 134 S.W. 1060,155 Mo.App. 441 |
| Parties | PERCY F. HAMMAR et al., Respondents, v. ST. LOUIS MOTOR CARRIAGE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
AFFIRMED AND REMANDED.
STATEMENT.--Action for appointment of a receiver. Defendant is a manufacturing company, incorporated under the laws of Missouri. On May 19 1905, plaintiffs brought suit against it in the circuit court of the city of St. Louis to recover damages for breach of contract, and defendant was duly summoned and appeared therein. Thereafter, about December 8, 1905, and while said suit was pending, the directors of the defendant company acting unanimously, caused a corporation to be organized under the laws of the State of Illinois and transferred to it all of the property and assets of the defendant company taking therefor to themselves and in their own names all of the capital stock of the Illinois corporation, except a few shares that went to the secretary, who was a stockholder of the defendant, but not a director. Each took in proportion to his or her holding of stock in the defendant company. Absolutely nothing went to the defendant company in its corporate capacity on account of the transfer. The stock thus received and appropriated by the directors of the defendant corporation was worth at the time from seventy thousand to one hundred thousand dollars above all the defendant's liabilities. After the transfer, the defendant company did not assert any right of ownership in the stock of the Illinois corporation, did no more business, and had no place of business. Its officers and directors abandoned it, held no meetings and discontinued acting for it, except that the plaintiffs' suit for breach of contract continued to be contested in the name of the defendant. On April 10, 1907, plaintiffs recovered judgment against defendant in said suit and had execution issued against it. A part of the judgment debt was made on the execution and it was returned nulla bona as to the residue. There being no property of the defendant to levy upon, plaintiffs demanded of defendant through its president that it compel restitution by the directors of property and assets sufficient at least to satisfy plaintiffs' judgment, but it refused, and plaintiffs then brought this action in the circuit court of the city of St. Louis for the appointment of a receiver to compel such restitution. Defendant appeared by counsel and filed its answer admitting that it was incorporated under the laws of Missouri and that plaintiffs had obtained judgment against it, but denying each and every allegation of the petition not expressly admitted. Said answer attempted to justify the transfer, and stated facts which it relies upon as having accomplished its dissolution before the bringing of this action. By said answer, defendant also offered "to cause said shares of stock to be delivered to the sheriff," etc. We may remark that at the time of this "offer" the Illinois corporation had become bankrupt and its shares worthless. Upon the trial, the defendant offered, and the court excluded, evidence relied upon by the defendant to show its dissolution before the bringing of this action. The evidence admitted disclosed the pertinent facts to be as we have described them and the court made and entered its decree appointing the receiver, and defendant has appealed.
Judgment affirmed and cause remanded.
Stern & Haberman for appellant.
The old corporation was effectually dissolved, the issue made by the pleadings, and the court should not have sustained the objection to the introduction of the evidence. R. S. Mo. 1909, secs. 3031, 3006, 2995; Farmer v. Gallagher, 43 Mo.App. 482; Moore v. Whitcomb, 48 Mo. 543; 2 Cook on Corporations, sec. 629.
Carter, Collins, Jones & Barker for respondents.
(1) Defendant, not having filed a denial of its corporate existence under oath, as required by section 1985, R. S 1909, must be held to have admitted that fact for the purposes of this case. R. S. 1909, sec. 1985; Ludowski v. Benevolent Assn., 29 Mo. 338; White v. I. O. O. F., 30 Mo.App. 683; Witthouse v. Railroad, 64 Mo. 524; Kupferschmid v. Railroad, 70 Mo.App. 444. (2) Having appeared and pleaded in the case, the defendant is estopped to deny its corporate existence for the purposes of this case. Seaton v. Railroad, 55 Mo. 416; Smith v. Railroad, 55 Mo. 527; Meyer Bros. v. Ins. Co., 73 Mo.App. 169; Eubank v. Edina, 88 Mo. 654; Sappington v. Railroad, 14 Mo.App. 87. (3) The refusal of the court to admit testimony offered by defendant to establish its non-exisence as a corporation, to-wit, the vote of a stockholders' meeting to dissolve it, was not error, for assuming that such action had been taken by the stockholders, it would not be effectual to dissolve the company for the...
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