Hill-Behan Lumber Co. v. Hammer Dry Plate Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Bennick
• Citation: Hill-Behan Lumber Co. v. Hammer Dry Plate Co., 162 S.W.2d 348 (Mo. App. 1942)
• Decision Date: 02 June 1942
• Docket Number: No. 26106.,26106.
• Parties: HILL-BEHAN LUMBER CO. v. HAMMER DRY PLATE CO. et al.

162 S.W.2d 348

HILL-BEHAN LUMBER CO. v. HAMMER DRY PLATE CO. et al.

No. 26106.

St. Louis Court of Appeals. Missouri.

June 2, 1942.

Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.

"Not to be reported in State Reports."

Action by Hill-Behan Lumber Company against Hammer Dry Plate Company and another for purchase price of lumber and to establish a mechanic's lien against named defendant's property. During the pendency of the action, named defendant changed its corporate name to Hammer Dry Plate and Film Company and was reorganized under the Bankruptcy Act as Hammer Dry Plate & Film Company, a Delaware corporation, which appeared in the action and moved for dismissal. Judgment of dismissal and plaintiff's motion for new trial was overruled, and plaintiff appeals.

Appeal dismissed.

Walter Lambert and H. A. & C. R. Hamilton, all of St. Louis, for appellant.

Rassieur, Kammerer & Rassieur and Otto R. Erker, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is a purported appeal by plaintiff mechanic's lien claimant from an order sustaining a motion to dismiss the cause of action as to the defendant owner of the property against which the lien was sought to be established and enforced.

The plaintiff is Hill-Behan Lumber Company, which has an account against defendant Frank H. Schubert, the contractor, for lumber furnished by plaintiff to Schubert and used by the latter in the erection of a building upon the property of defendant Hammer Dry Plate Company under contract between himself and the company. The prayer of the petition is for a personal judgment against defendant Schubert for the sum of $502.42 with interest, and that the same be established and enforced as a lien against the property.

It appears that during the pendency of such mechanic's lien suit, the defendant owner, Hammer Dry Plate Company, a Missouri corporation, changed its corporate name to Hammer Dry Plate and Film Company, and thereafter, under such new name, filed a petition for reorganization in the United States District Court for the Eastern Division of the Eastern Judicial District of Missouri under the provisions of Chapter 10 of the Bankruptcy Act, 11 U.S.C.A. §§ 501-676.

In its petition for reorganization the debtor corporation alleged that its assets included, among other things, a deposit of $965 with the Reconstruction Finance Corporation to cover its contingent liability on a mechanic's lien, and that among its liabilities was a contingent liability of approximately $800 on a mechanic's lien held by Hill-Behan Lumber Company, against which the deposit with the Reconstruction Finance Corporation should apply. However, in the subsequent schedule of its property, creditors, and the like which was filed upon the approval of the petition, Hill-Behan Lumber Company was not listed as a creditor, nor did its officers have brought to their personal attention the several notices published in the St. Louis Daily Record, including the notice to all creditors to file proofs of their claims on or before a day fixed by the court, or else be barred from participation in any plan of reorganization. Nevertheless it appears from plaintiff's own evidence that it did have actual notice of the pendency of the proceeding for corporate reorganization, but apparently neglected to make proof of claim in such proceeding for the reason that in the view it then took of the matter, its claim was purely against Schubert, with a lien to be declared upon the property for the satisfaction of any judgment which might be rendered against him in plaintiff's favor, and did not comprise a provable claim against the debtor corporation in the corporate reorganization proceeding, which was not personally indebted to plaintiff on the lien account.

Suffice it to say that in due time a plan of reorganization was worked out and confirmed by the court whereby a new corporation, Hammer Dry Plate & Film Company, a Delaware corporation, was organized to take over the assets of the debtor corporation for the purpose of carrying out the details of the plan. The transfer of assets was completed (including the conveyance of the property involved in this proceeding); and upon the consummation of the plan, the court entered its final decree discharging the debtor corporation from all its debts and liabilities, and permanently enjoining all creditors and all claimants against it and its assets from further pursuing or continuing any suits or proceedings, either against the debtor corporation, or against the new corporation or the assets transferred or assigned to it, on account of any right, claim, lien, or interest which any such creditor or claimant might have had, or might have claimed to have had, against such debtor corporation or its assets, excepting, of course, such liabilities and obligations as the new corporation expressly assumed pursuant to the plan of reorganization.

Following the entry of such final decree in the United States District Court, the Hammer Dry Plate & Film Company, the Delaware corporation, appeared in the mechanic's lien suit which was pending in the Circuit Court of the City of St. Louis, and filed a motion therein setting up the reorganization proceeding in the federal court with respect to Hammer Dry Plate and Film Company, the Missouri corporation, which was the defendant owner in such mechanic's lien suit; the court's confirmation of the plan of reorganization; the transfer to the movant of all the assets of such debtor corporation, including the property involved in the mechanic's lien suit; and the entry of the final decree of the federal court discharging the debtor corporation and enjoining all its creditors from the further prose...