Haseltine v. Messmore

• Decision Date: 14 June 1904
• Citation: 184 Mo. 298,82 S.W. 115
• Parties: HASELTINE v. MESSMORE et al.
• Court: Missouri Supreme Court

82 S.W. 115

184 Mo. 298

HASELTINE v. MESSMORE et al.

Supreme Court of Missouri, Division No. 2.

June 14, 1904.

APPEAL — AFFIDAVIT — ADDITIONAL ABSTRACT — WAIVING TIME OF SERVICE — ASSIGNMENT FOR CREDITORS — ACTION BY ASSIGNEE — FRAUD — SUING ASSIGNORS — JURISDICTION — SERVICE ON NONRESIDENTS — WAIVER.

1. An affidavit for appeal filed after entry of judgment is sufficient, though thereafter, on motion of appellants to correct entries therein, a new judgment, practically the same, and intended as a substitute therefor, is entered.

2. Appellants, having made no objection to respondent's additional abstract till during the hearing, but till that time having treated it as if served on them in accordance with Sup. Ct. Rule 11 (73 S. W. vi), requiring it to be served 15 days before the cause is set for hearing, will be treated as having waived the time of service.

3. The assignee for creditors of a firm cannot sue the assignors for conspiring with others to defraud the firm and its creditors, as an assignment gives the assignee only such rights as the assignor had, and the firm could not sue its members for its own acts.

4. Where the petition states no cause of action against the defendants residing in the county, jurisdiction is not acquired, by service of the summons, of the defendants residing and served outside the county.

5. Where misjoinder of defendants residing in the county with defendants residing outside the county appears on the face of the petition, the question of acquisition of jurisdiction of the latter by service of summons out of the county may be raised after judgment.

6. Defendants residing and served with process outside the county waive all question of service of process by filing a general demurrer, and an answer in the nature of a general denial, which raises no question of jurisdiction, and by appearing generally in the taking of depositions, and on application to produce papers and at the trial.

7. Rev. St. 1899, § 365, declaring an assignee under the general assignment law to be a trustee for the benefit of the creditors of his assignor, and empowering him to prosecute such actions for property, and make such defense to claims against the assigned property, as a trustee in a deed of trust, or an attachment or execution creditor with a writ levied on such property, could prosecute or make, does not authorize an assignee to maintain an action based on fraud and collusion of defendants to cheat and defraud the assignor and his creditors, in pursuance of which they received and appropriated money to their own use.

Appeal from Circuit Court, Jackson County; Wm. B. Teasdale, Judge.

Action by William G. Haseltine, assignee of the Bird & Miller Grain Company, against John L. Messmore and others. Judgment for plaintiff. Defendants appeal. Reversed.

Geo. W. Taussig and Hickman P. Rodgers, for appellants. Scarritt, Griffith & Jones, for respondent.

BURGESS, J.

In the month of January, 1897, Steele M. Bird and Frank L. Miller formed a copartnership, under the firm name and style of the Bird & Miller Grain Company, with a capital of $450, for the purpose of engaging in the business of buying and selling grain, with offices at Kansas City, Mo. About six months thereafter they commenced consigning grain to the firm of Messmore, Gannett & Co., a copartnership composed of A. L. Messmore, John M. Gannett, and T. B. Morton, and conducting a grain commission business at the city of St. Louis. A large number of cars of grain were shipped by the Bird & Miller Grain Company under consignment to Messmore, Gannett & Co., amounting in the aggregate to about 750 cars, most of which, if not quite all, was wheat of various grades and qualities, which was sold by defendants on commission; the proceeds arising therefrom, less their commissions, being, as a rule, promptly remitted to the Bird & Miller Grain Company. On the 18th day of January, 1898, the Bird & Miller Grain Company, becoming heavily involved in debt, and being unable to meet its liabilities, made an assignment for the benefit of its creditors; and said assignee, or, rather, William G. Haseltine, his duly appointed successor, instituted this suit in the circuit court of Jackson county to recover the sum of $15,000, alleged to have been received and appropriated by defendants to their own use after the assignment of the Bird & Miller Grain Company, which rightfully belonged to said company. At the return term, on January 8, 1900, the defendants Messmore, Gannett, and Morton, appearing specially for that purpose, filed a motion or plea directed to the jurisdiction of the court as to them on the ground that service of summons in the cause was obtained upon them in the city of St. Louis, and that defendants Bird and Miller were made parties to the suit for the sole purpose of giving the court apparent jurisdiction of the cause. While this motion or plea was pending, defendant A. L. Messmore died, in February, 1900. At the January term, 1900, of said court, on March 23d, an order was duly entered making John L. Messmore and William M. Scudder, executors of the estate of A. L Messmore, deceased, parties defendant, unless they showed cause to the contrary on or before the fourth day of the next term of the court. At the April term, 1900, of said court, on April 23d, an order was entered of record reviving the cause as to the defendant A. L. Messmore, deceased, in the name of his said executors. The motion or plea to the jurisdiction, in so far as it was directed against the original petition, was never acted on by the court. Thereupon the plaintiff filed an amended petition, wherein John L. Messmore and William M. Scudder, executors of the estate of A. L. Messmore, deceased, were named as defendants in lieu of A. L. Messmore, deceased, and which contained appropriate allegations as to the condition of the parties caused by the death of A. L. Messmore, and the consequent dissolution of the partnership which had theretofore existed between him and John M. Gannett and T. B. Morton. In other respects the charges of the petition were substantially the same as those of the original petition. The record of the court shows an entry upon the 13th of October, 1900, at the October term of that court, as follows: "Now the defendants refile their plea to the jurisdiction of the amended petition, and said plea is by the court heard and overruled, without prejudice, to which ruling of the court defendants except. Thereupon defendants are given leave of court to plead further herein." The plea or motion so refiled was the same document filed on the 8th of January, 1900, which opened with the words, "Come now the defendants A. L. Messmore, John M. Gannett, and T. B. Morton, appearing specially," etc., and is signed, "Scammon, Mead and Stubenrauch, Attorneys for Messmore, Gannett & Company." On October 17, 1900, at the same term as that last referred to, the defendants Messmore and Scudder, executors, and Gannett and Morton appeared generally in the cause, by filing a demurrer, which was based upon the sole ground that "said amended petition did not state facts sufficient to constitute a cause of action against them," which was overruled on October 20th, and no exceptions were preserved to that action of the court. On October 22, 1900, the defendant executors and Morton and Gannett again appeared generally, by filing an answer in which they admitted that A. L. Messmore, T. B. Morton, and John M. Gannett were partners as alleged in the amended petition, and denied all other allegations in the petition. The original defendants, Messmore, Gannett, and Morton, appeared unconditionally by counsel at the taking of depositions on the part of the plaintiff at Kansas City on January 18, 1900, at which time the depositions of the defendants Bird and Miller were taken. And all the appealing defendants appeared unconditionally by counsel at the taking of depositions in this cause in St. Louis on September 24, 1900, at which time the deposition of defendant Morton was taken, and at which time plaintiff attempted to take the deposition of defendant Gannett and the bookkeeper, Ellis, of the firm of Messmore, Gannett & Morton. All the appealing defendants appeared generally by counsel in this cause in open court, in resisting the applications to produce papers preliminary to the trial. The cause came regularly to trial on May 10, 1901, at the April term of the court, where the appealing defendants appeared generally by counsel and defended the action.

The petition was in two counts, but the first count was withdrawn by the plaintiff. The second count of the petition, upon which the trial was had, is as follows: "Plaintiff for a second cause of action, states that he is the duly appointed, qualified, and acting assignee of the Bird & Miller Grain Company, and that said Bird & Miller Grain Company was at all times herein referred to a copartnership engaged in the business, at Kansas City, Missouri, of buying and selling grain for its own account, and of buying and selling grain for others on commission, and was composed of Steele M. Bird and Frank L. Miller; that the defendants A. L. Messmore, Gannett, and Morton were, at all the times herein referred to, partners engaged at St. Louis, Missouri, in buying and selling grain on their own account, and of selling grain for other persons on commission, under the style of Messmore, Gannett & Co.; that A. L. Messmore has, since the institution of this suit, died, and John L. Messmore and William Scudder are his executors; that the said defendants, composing the firm of Messmore, Gannett & Co., on or about the 1st day of August, 1897, entered into an agreement with the said Bird & Miller Grain Company whereby it was understood and agreed that the said Bird & Miller Grain Company should buy grain upon the market at Kansas City or elsewhere, and consign and ship the same to Messmore, Gannett & Co., at St. Louis, and that said Messmore,...