Holland Banking Co. v. Robertson

• Decision Date: 03 April 1941
• Citation: 149 S.W.2d 909,237 Mo.App. 629
• Parties: In the Matter of Liquidation of Holland Banking Company, Respondent, v. T. W. Robertson, Appellant
• Court: Missouri Court of Appeals

149 S.W.2d 909

237 Mo.App. 629

In the Matter of Liquidation of Holland Banking Company, Respondent, v. T. W. Robertson, Appellant

Court of Appeals of Missouri, Springfield District

April 3, 1941

Appeal from the Circuit Court of Greene County; Hon. Guy D. Kirby Judge.

Affirmed.

Collins & Pierce for appellant.

(1) (a) The jurisdiction of the court ceases with the expiration of the term at which the final judgment was rendered, and thereafter the court has no power to correct or amend the judgment and no power after the expiration of the term to open or vacate the judgment. 34 C. J. 201; 35 C. J. 43; Scott & Colbern v. Joffee, 125 Mo. 573; Bank v Porter, 148 Mo. 176; Harkness v. Jarvis, 182 Mo. 231; Jones v. Peterson, 72 S.W.2d 76; Gray v. Missouri Lumber & Mining Co., 177 S.W. 595; Mathews v. Stephenson, 172 Mo.App. 220; State v Brown, 95 S.W.2d 661; Barnes v. Henshaw, 80 N.E. 1076; Davison v. Davison, 207 Mo. 702. (b) A court may at any time correct clerical errors by minutes of the judge or by some record in the cause showing clearly that such a clerical error was committed, and the court may correct a judgment entry so as to make the judgment that which in fact was rendered. Robertson v. Neal, 60 Mo. 579; Fletcher v. Coombs, 58 Mo. 430; Hanly v. Dives, 1 Mo. 16; State v. Clark, 18 Mo. 432; Davison v. Davison, supra. Therefore, where the clerk fails to enter a judgment or enters a wrong judgment, the power to correct the error exists where the order of nunc pro tunc simply seeks to have the proper entry made, but when the court has failed to make an order which it might or ought to have made, it cannot be made at a subsequent term even by a nunc pro tunc entry. Gibson v. Choteau's Heirs, 45 Mo. 171; Turner v. Christy, 50 Mo. 145; Priest v. McMaster, 52 Mo. 60; Dunn v. Raley, 58 Mo. 134; Fletcher v. Coombs, supra; State ex rel. Graves v. Primm, 61 Mo. 170; Woolridge v. Quinn, 70 Mo. 370; Ross v. R. R., 141 Mo. 390; Campbell v. Spotts, 55 S.W.2d 986. (c) The order approving the sale and distribution in this case was a final judgment. Marsala v. Marsala, 232 S.W. 1048; Clark v. Sires, 193 Mo. 502; Murray v. Yates, 73 Mo. 13; Harbison v. Sanford, 90 Mo. 477. (d) A motion to set aside the order approving the sale serves the office of a motion for new trial and must be filed within four days after the trial or after the entry of final judgment, and a motion to set aside filed during the May term but more than four days after the entry of the final judgment was too late. Bank v. Porter, 148 Mo. 176; Mirrieless v. Ry. Co., 163 Mo. 470. And a general order continuing all motions to the next term did not have the effect of continuing the jurisdiction of the court so that it could set aside the judgment on its own motion and treating the motion filed out of time as a mere suggestion to the court. Childs v. Ry., 117 Mo. 414. (2) What Commissioner Johnson said to Robertson at the time of the sale as to what property was being sold was admissible as a part of the res gestae and as showing the understanding of the parties. Jones v. Peterson, supra. (3) The court erred in rendering judgment for the plaintiff and against the defendant because the evidence showed that the commissioner had previously sold all of the assets to the defendant, and the rule that where words of general description in a contract are limited by later words specifically or particularly describing the property does not apply in this case. Collins v. Truman, 223 Mo.App. 186; Donivan v. Boeck, 217 Mo. 70; Thomas v. Lindsay, 242 Mo. 53; Home Trust Co. v. Shapiro, 64 S.W.2d 727; Barnett v. Logan, 210 S.W. 440; Collins v. Truman, 14 S.W.2d 526.

Farrington & Curtis for respondent.

(1) The liquidation of an insolvent bank, so far as it relates to the matter of expenses attendant thereto; sales of real estate and personal property belonging to such bank; allowance of disputed claims; determination of priorities and payment of dividends, is by statute under the supervision of the circuit court of the county in which said bank had its place of business. Secs. 5323, 5324, 5330, 5335, 5336 and 5339, R. S. 1929. (2) All uncollected dividends or funds of an insolvent bank are by statute required to be delivered to the Commissioner of Finance, to be retained by him for the use of those entitled thereto. Sec. 5303, R. S. 1929. (3) The circuit court, in all its actions relating to insolvent banks, acts as a court of equity, since receiverships generally are regarded as equitable in their nature, and are controlled and administered by equitable principles. The liquidation of an insolvent state bank is a receivership proceeding provided by statute, and placed under the control of circuit courts. 53 C. J., p. 19. (4) When a court of equity takes jurisdiction of a cause, it will retain such jurisdiction until full and complete justice has been done. Rock Hill Tennis Club v. Volker, 56 S.W.2d 20; Selle v. Selle, 88 S.W.2d 883; Waugh v. Williams, 119 S.W.2d 227. (5) On the termination of a receivership the court has continuing power to make disposition of the property which has come into the receiver's hands by virtue of his appointment, and to see that the same is paid out to those rightfully entitled thereto. This is true even though in final judgment or order an allowance of a claim of a debtor against a receiver ends the jurisdiction of the court over the claim insofar as it concerns the propriety of such claim, and the court still has jurisdiction to require payment of the sum allowed to the party to whom it is due. 53 C. J. 223, 309; 1 Clark on Receivers, sec. 696, p. 1008. (6) The asset claimed by the appellant was equivalent to money on deposit to the credit of the Commissioner of Finance for use of the Holland Banking Company and as such was not the subject of sales. Jones v. Peterson, 72 S.W.2d 84. (7) The petition and order of sale of remaining assets of the Holland Banking Company are not ambiguous nor claimed to be so by appellant, therefore it was not error to refuse to permit oral testimony as to the meaning thereof, nor as to what property was being sold under the order of court. Barnett v. Logan, 210 S.W. 440. (8) It is conceded that the disputed assets were once the property of the Holland Banking Company. The claim of appellant thereto is based solely upon an allegation that they were included in the sale of the remaining assets of said bank. Unless said claim can be supported by the records of the court wherein such sale was made, appellant's claim is groundless and must fall. The question of the jurisdiction of the circuit court to pay out such sum as a further dividend has no place in this appeal. If appellant can show title to the fund it is his, otherwise its disposition by the court is of no concern to him. Appellant must recover, if at all, on the strength of his own title to said fund.

Fulbright, J. Blair, P. J., and Smith, J., concur.

OPINION

FULBRIGHT

This action was instituted in the Circuit Court of Greene County, March 23, 1940, by respondent filing a petition asking the court to hear and dispose of any claims that appellant, T. W. Robertson may have in certain funds amounting to $ 4151.60, in the hands of respondent, and that if the court finds that said funds belong to the Holland Banking Company that a final dividend be ordered paid therefrom to the creditors of said banking company. Judgment was rendered in favor of respondent from which said judgment T. W. Robertson has duly appealed to this court.

Respondent's petition, among other things states "that at the time he obtained the order for the payment of said final dividend, he overlooked and failed to include in the assets in his possession, subject to the payment of such dividend, amounts due the Holland Banking Company from the Farmers State Bank of Mt. Vernon, Missouri, and from the Mt. Vernon Bank, both in Lawrence County, Missouri, on claims which the Holland Banking Company had filed against said banks; that since the payment of said dividend and the sale of said assets, there has come into the possession of your petitioner from dividends on said claims the sum of $ 4151.60 in cash", and alleges, in substance, that these funds belonged to the Holland Banking Company and are available as a dividend to the creditors of said banking company, and alleges that "T. W. Robertson is making claim to said fund on the ground that said claims were included and sold to him in the sale of their remaining assets of the said Holland Banking Company." It further alleges that said claims were not included in the assets sold to T. W. Robertson and that in the opinion of the petitioner "said funds belonged to the creditors of the said Holland Banking Company."

Appellant filed a Plea In Bar, which, omitting caption and signatures, is in words and figures as follows:

Plea in Bar

"Comes now T. W. Robertson and shows to the court that at the September, 1939, Term of this court, R. W. Holt, Commissioner of Finance of the State of Missouri, secured an order from this court to sell all the remaining assets of the Holland Banking Company; that in pursuance of that order he sold all the assets of said bank to the highest bidder; that included in such assets was a claim of $ 4151.60 due from the Farmers State Bank of Mt. Vernon, Missouri; that the said T. W Robertson was the highest bidder for all the personal assets of said bank; that at the time of such sale a representative of the Commissioner of Finance of the State of Missouri announced publicly that the sale included all the remaining assets of said bank; that such sale was made and completed and approved by the Judge of this Court during the September Term, 1939, of said Court; that under an order made by this court at said September Term the Commissioner...