Hitch v. Stonebraker

• Decision Date: 26 November 1894
• Citation: 28 S.W. 443,125 Mo. 128
• Parties: Hitch v. Stonebraker
• Court: Missouri Supreme Court

28 S.W. 443

125 Mo. 128

Hitch v. Stonebraker

Supreme Court of Missouri, First Division

November 26, 1894

Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed.

H. C Lackland and C. W. Wilson for appellant.

(1) Defendant's motion to dismiss because of a defect of parties plaintiff should have been sustained. The bond sued on, was the demand in the case. It is apparent on the face of the bond, that the curators of the St. Charles College, the obligees in the bond, are the only persons entitled to sue thereon, and that Garner B. Hitch, the plaintiff, is not the obligee, and has no cause of action against the defendant estate. Stonebraker was responsible only to the party to whom he bound himself. Woodworth v. Woodworth, 70 Mo 603; State v. Moore, 19 Mo. 371; Duty's Adm'r v. Dutcher, 15 Mo. 89; Gardner v Armstrong, 31 Mo. 535; Armstrong v. Durland, 11 Kan. 15; People v. Harper, 91 Ill. 357; Forrest v. O'Donnel, 42 Mich. 556; Farmington v. Hobart, 74 Me. 416; Bauer v. Cabanne, 105 Mo. 110; Nofsinger v. Hartnett, 84 Mo. 549; Meier v. Lester, 21 Mo. 112; Sickles v. McManus, 26 Mo. 28. (2) The plaintiff, Garner B. Hitch, was plainly not entitled to judgment in this case, because George B. Johnston had never been removed as trustee, and Hitch was never legally appointed his successor in trust. The action of the St. Louis circuit court, in attempting to revoke Johnston's authority, and to appoint Hitch in his stead, was null and void for want of jurisdiction: First. Because the ex parte affidavit did not state the essential jurisdictional fact, that the trust property was situated in the city of St. Louis. 2 R. S. 1889, sec. 8683. Second. Because in point of fact, the trust fund and no part of it was situated in the city of St. Louis. Third. Because this essential jurisdictional fact, the location of the property, nowhere appears in the petition or affidavit, order or judgment of the court, or at any point in the proceeding. In the execution of a mere statutory power, the record and proceedings of the circuit court must plainly show every jurisdictional fact. Unless the jurisdictional facts appear, the whole proceeding is a nullity. Fithian v. Minks, 43 Mo. 502; Higgins v. Peltzer, 49 Mo. 152; Coe v. Ritter, 86 Mo. 283; Railroad v. Company, 62 Mo. 585; Cunningham v. Railroad, 61 Mo. 33; Ellis v. Railroad, 51 Mo. 203; Railroad v. Young, 96 Mo. 42. (3) The appointment of Johnston as a successor in trust of Polk upon the statutory affidavit and application in 1877, by the circuit court of St. Louis county, the estate was not brought into chancery for administration under the supervision of the chancellor. Johnston was not thereby made the officer of the court to administer the trust. 2 R. S. 1889, secs. 8683, 8684. (4) The proceedings of the St. Louis circuit court, as an exercise of chancery powers, would be wholly nugatory. Equity jurisdictions may neither be acquired or exercised by mere ex parte motion. To take control as a court of equity, a regular bill and due notice to Johnston was essential. Holden v. Vaughn, 64 Mo. 589. (5) The surety, Stonebraker, was released by the conduct of the obligee in the bond, the curators of St. Charles College. First. The obligation of the surety was one of strict law. Bauer v. Cabanne, 105 Mo. 518; Nofsinger v. Hartnett, 84 Mo. 549; Blair v. Ius. Co., 10 Mo. 566. Second. Johnston's use of the money in person, instead of loaning the same out, or investing it, as required by the terms of the trust, with the knowledge and consent of the curators of St. Charles College, the obligee in the bond, operates a release of the surety, Stonebraker. They had no right to do anything, thus increasing the risks of the surety. 1 Story's Eq. [6 Ed.], secs. 324, 325; Nofsinger v. Hartnett, 84 Mo. 551; Bauer v. Cabanne, 105 Mo. 118; Taylor v. Jeter, 23 Mo. 244; Stillwell v. Aaron, 69 Mo. 539; Savings Association v. Helmrick, 57 Mo. 100; 17 Am. and Eng. Encyclopedia of law, p. 99; Bank v. Thomas, 2 Mo.App. 367; Chouteau v. Allen, 70 Mo. 290.

T. F. McDearmon for respondent.

(1) The judgment was properly rendered in favor of Garner B. Hitch, trustee. He was the trustee of an express trust, and the legal title to the trust fund was vested in him, and as such he was the proper party to sue. 1 R. S. 1889, sec. 1991; Cedar County v. Johnson, 50 Mo. 225; Ellis v. Harrison, 104 Mo. 277; Kirkpatrick v. Railroad, 86 Mo. 341; State v. Rubey, 77 Mo. 610; Snyder v. Express Co., 77 Mo. 523; Parker v. Rhodes, 79 Mo. 91; State v. Moore, 74 Mo. 413; Lafayette County v. Hixon, 69 Mo. 581; State v. Powell, 67 Mo. 395; State ex rel. v. Sappington, 68 Mo. 454; Stillwell v. Glasscock, 47 Mo.App. 554. (2) The party to whom the money was payable, is the proper party to sue. Ziegler v. Fallon, 28 Mo.App. 295; Dollarhide v. Parks, 92 Mo. 178; Beck v. Haas, 31 Mo.App. 560; S. C., 111 Mo. 264. (3) The circuit court of the city of St. Louis had jurisdiction to remove the trustee, George B. Johnston, and appoint his successor. Up to the time of Trusten Polk's death it had jurisdiction of both the subject-matter of the trust and the trustees. Now, it is fundamental, that a court, once having jurisdiction of a trust fund, will retain it, until the trust is fully administered. This regardless of the movements of the trustee. The removal of the trustee, or the subject-matter of the trust, can not affect the jurisdiction or control. 1 Perry on Trusts, pp. 53, 54, sec. 77; Smiley v. Cockrell, 92 Mo. 112; Seebel v. Simon, 62 Mo. 255. (4) Even if the said court had no jurisdiction to appoint Johnston trustee, and, more than this, said Johnston were under personal disability to execute the bond in suit, so that the same could not be enforced against him, yet this would be no defense for the surety. Machine Co. v. Maxwell, 63 Mo. 486; Baker v. Kennett, 54 Mo. 82. (5) The proceedings for the appointment of both trustees, Johnston and Hitch, were properly based on sections 8683, 8684, Revised Statutes, 1889, and notice was not necessary. 2 R. S. 1889, secs. 8683, 8684; Thompson v. Foerstel, 10 Mo.App. 290. The appointment of the said trustees comes not only within the spirit of sections 8683 and 8684, but within the express terms of said sections. (6) The jurisdiction of these courts is presumed where there is nothing in their record showing lack of jurisdiction, when collaterally called in question. State v. Daniels, 66 Mo. 192; Johnson v. Beazley, 65 Mo. 250; Werz v. Werz, 11 Mo.App. 26; Huxley v. Harrold, 62 Mo. 516. (7) No notice to Johnston or demand was necessary before presenting this claim to the probate court for allowance against the estate of John E. Stonebraker, the surety. 1 R. S. 1889, secs. 2948, 863, 864; State to use v. Grupe, 36 Mo. 366; Reed v. Mullins, 43 Mo. 306; Lee v. Casey, 39 Mo. 383.

OPINION

Brace, J.

On the tenth day of November, 1890, the plaintiff, as trustee of St. Charles College, presented to the probate court of St. Charles county a demand for allowance against the estate of J. E. Stonebraker, deceased, for $ 3,000, with six per cent. interest thereon from the first day of April, 1886, based upon the following bond filed therewith:

"Know all men by these presents, that the undersigned, George B. Johnston, as principal, and John E. Stonebraker, his securities, are held and firmly bound unto the curators of the St. Charles College, in the sum of $ 5,000, which payment well and truly to be made, they bind themselves, their heirs, executors and assigns. In testimony whereof they have hereunto subscribed their names and affixed their seals this sixth day of July, in the year eighteen hundred and seventy-seven.

"The condition of the above obligation is such, whereas the circuit court of the county of St. Louis, on the day of , in the year 1877, appointed George B. Johnston, of the county of St. Charles, trustee of a certain sum of $ 3,270, allowed against the estate of Trusten Polk, deceased, and in favor of the curators of the St. Charles College, which said sum, being a part of a sum of money, bequeathed to the said college by the last will and testament of Catherine Collier, deceased. Now, should the said George B. Johnston, administer and manage the said sum of money to the best advantage, so that it may bring a reasonable interest, and pay the said interest as it annually accrues, to the treasurer of said college, and pay over and account to his successor, the principal of said fund, then this obligation to be void, otherwise to remain in full force.

"Geo. B. Johnston, [seal]

"John E. Stonebraker. [seal]"

The demand was allowed in the fifth class by said court on the eighteenth of February, 1892, for the sum of $ 4,057.50 with six per cent. interest from that date against said estate, and an appeal was taken by the administratrix to the circuit court, where the case was tried de novo, the issues found for the plaintiff and judgment rendered in his favor for the sum of $ 4,095 damages with six per cent. interest thereon and costs, and it was ordered that said sum be allowed in the fifth class against the estate of John E. Stonebraker, deceased, and that a copy of such judgment be certified to the probate court of St. Charles county. From which judgment the administratrix appeals to this court.

The facts disclosed by the record are that Mrs. Catherine Collier, in and by her last will and testament, duly probated on the twenty-sixth of August, 1835, made the following bequest:

"Second. I give unto my son George Collier, as trustee during his lifetime, the sum of $ 5,000, to be by him put out at interest or invested in some permanent stocks at his discretion, within two years from and after my death. The interest on $ 2,000 of which I desire to be applied to the education of such young...