Holman v. Renaud
| Decision Date | 07 February 1910 |
| Citation | 125 S.W. 843,141 Mo.App. 399 |
| Parties | W. T. HOLMAN et al., Respondents, v. ALBERT A. RENAUD, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Dent Circuit Court.--Hon. L. B. Woodside, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--Orella M. Bassinger lived in Dent county, Missouri, and was the owner of some land located partly in that county and partly in Phelps county. She executed a will in which was this clause. "I direct my executors to sell my undivided interest in the two tracts of land in Dent county, in the State of Missouri, and a small farm I own near said lands in Phelps county in said State of Missouri for such price and at such times as they shall consider most wise and prudent, and the proceeds thereof to pay over to Albert A. Renaud and Judge Flett, of Watkins, Dent county, Missouri, to be expended by them in erecting a Memorial Union Chapel to be used for religious purposes by the several evangelical denominations in the vicinity of said chapel to be located centrally on the above mentioned lands, and lands owned by my husband, in as public and accessible a place as practicable or in the village of Edgar Springs, if it is thought by them best."
Mrs Bassinger removed to the State of New Jersey, where she died about the year 1893. Her will was probated in that State and a copy thereof recorded in the recorder's office of Dent county in this State. About the year 1897, the land mentioned in the will was sold, the money forwarded to the executors of the will in New Jersey, and, in February, 1908, the plaintiffs in this action, W. T. Holman, A. J. Flatt and John Flett, filed a petition in the circuit court of Dent county against the defendant, Albert A. Renaud, for the purpose of having him removed as trustee, under the will of Mrs Bassinger, and alleged therein that they were bringing the suit in their own behalf and in the behalf and at the relation and to the use of the people of Watkins township, in Dent county, Missouri, and, to further show their right to maintain the action, allege that they are residents and property-owners, both real and personal, of the immediate neighborhood in which the said Orella M. Bassinger particularly designated in her last will and testament, that said Memorial Union Chapel should be built. Then further alleged that Judge Flett, the other trustee named in the will, is dead, and that this defendant, Albert A. Renaud, had long since removed to the State of Kansas, and was, at the time of the institution of this suit, a non-resident of this State. The petition asked that an order of publication be issued to notify said Renaud of the commencement of the suit, and that he be removed as trustee and that other trustees be appointed in his stead. Notice by publication was given, and at the April term of the Dent County Circuit Court, 1908, defendant, having made default, judgment was rendered removing him as trustee, and appointing the plaintiffs in this suit as trustees to carry out the provisions of the will. At the April term, 1909, of said court the defendant appeared and filed a motion to vacate the judgment, alleging as grounds therefor that the court had no jurisdiction to render the judgment in the first instance; that when rendered, no jurisdiction was obtained over the person of the defendant, nor did the court acquire jurisdiction over the trust fund mentioned in the pleadings.
The court overruled this motion, and defendant has appealed to this court.
Judgment reversed and cause remanded.
Lamar & Lamar and W. E. Barton for appellants.
(1) In the absence of service upon the defendant or seizure of property within the jurisdiction of the court, the court was without jurisdiction whatever. 22 Ency. Pl. and Pr., 21; Hitch v. Stonebreaker, 125 Mo. 228; Latimer v. Railroad, 43 Mo. 105; Moss v. Fitch, 212 Mo. 484; Smith v. McCutcheon, 38 Mo. 415; Wilson v. Railroad, 108 Mo. 580; Abbott v. Shepard, 44 Mo. 273; Lovejoy v. Allen, 33 Me. 414, 54 Am. Dec. 630; Alley v. Caspari, 6 Am. St. Rep. 178; DeArcy v. Ketchum, 62 U.S. 165; Pennoyer v. Neff, 95 U.S. 714; Brown on Jurisdiction of Courts (1 Ed., secs. 1 to 5 inclusive, sec. 11); De La Montanya v. De La Montanya, 112 Cal. 53; Freeman on Judgments (3 Ed.), sec. 118. This is the rule in equity as well as at law. Merwin's Equity, 167; Bisphan's Equity, 65; 16th Cyc. 124 D., 210, 214; 1 Pomeroy's Equity Jurisprudence (2 Ed.), sec. 298; R. S. 1899, sec. 4580, has no application to a trustee created by will. Hitch v. Stonebraker, 125 Mo. 128. (2) If a judgment is void for lack of jurisdiction over the parties or the subject-matter, it should be vacated on motion, either at the term rendered or at any subsequent term when the matter is called to the attention of the court rendering such judgment. Craig v. Smith, 65 Mo. 536; Freeman on Judgments (3 Ed.), secs. 96-97; 23 Cyc., Title, Void Judgments, 905; Cross v. Gould, 131 Mo.App. 585; Dearborn v. Gann, 176 Mo.App. 638; Bishop v. Seal, 92 Mo.App. 167; Neinnan v. St. Joseph, 126 Mo. 89; Gille v. Enmons, 48 P. 969, 68 Am. St. Rep. 609; People v. Green, 74 Cal. 400, 5 Am. St. Rep. 448. (3) The plaintiffs herein had no authority to bring or maintain this suit. 22 Ency. Pl. and Pr., 203; Crow ex rel. v. Clay County, 196 Mo. 234; McKenzie v. Trustee, 61 A. 1027, 3 L.R.A. (N. S.) 227; Burbank v. Burbank (Mass.), 9 L.R.A. 748; 6 Cyc., 199; Merwin's Equity Pl. and Pr., 211; Lackland v. Walker, 151 Mo. 210; Women's Christian Ass'n v. Kansas City, 147 Mo. 109.
Dalton & Author for respondents.
(1) The court had jurisdiction over the subject matter of this action. The land to be converted into money and re-converted into real estate was at all times within the jurisdiction of the trial court. Washburn on Real Property (4 Ed.), secs. 34, 34a; Hitch v. Stonebraker, 125 Mo. 139. (2) The court acquired jurisdiction over the person of the defendant by the order of publication. Hardy v. Clarkson, 87 Mo. 176. (3) The court had inherent power, as a court of equity, outside of statutory authority to remove the defendant as a non-resident trustee. Pomeroy's Equity Jurisprudence, secs. 1086-87. (4) The trial court had statutory power to require the trustee who was empowered to execute this trust to give bond. R. S. 1899, sec. 4582; Gartside v. Gartside, 113 Mo. 353. (5) A nonresident cannot execute a trust in this State. R. S. 1899, sec. 4372.
The question to be determined here is as to whether the court had jurisdiction to render the judgment which it did render. That the circuit court, being a court of general equity jurisdiction, has the power to remove a trustee will not be questioned.
1. Respondents seem to think that this is a proceeding under the statute, sections 4580 and 4581, and that the fact that defendant is a non-resident of the State disqualifies him to act as trustee and that he may be removed, with or without notice. In this they are mistaken. These sections of the statute do not apply to trusts created by will, but are limited in their application to trusts created by deed. [Hitch v. Stonebraker, 125 Mo. 128, 28 S.W. 443.]
The court is given power by statute to require a trustee, appointed by will, to give bond, and on his failure to do so, may remove him. Section 4582, et seq, but aside from these sections of the statute, the power to remove a trustee appointed by will, or to control his actions is exercised as an inherent power of the court, and is not derived from the statutes.
2. It is contended that plaintiffs could not maintain this action and that fact being disclosed upon the face of the petition, the court, for that reason, acquired no jurisdiction to render judgment removing appellant in this case. In this contention we think he is right. This action is bottomed upon the clause in the will of Mrs. Bassinger, which provides for the building of a house of worship to be open to the free use of all evangelical denominations in the vicinity. Clearly the beneficiaries of this trust are the church organizations of that vicinity included in the designation "evangelical denominations." Plaint...
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