Hunter v. Mathewson
| Decision Date | 14 June 1910 |
| Parties | LEE HUNTER, Respondent, v. A. G. MATHEWSON et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed.
Brown & Gallivan for appellant.
(1) That the court erred in overruling defendants' demurrer and in permitting the plaintiff to offer any testimony on the petition over the objections and exceptions of the defendants at the time, the petition not stating facts sufficient to constitute a cause of action. The objections that the petition does not state facts sufficient to constitute a cause of action in law or equity can be raised at any time. Hudson v. Cahoon, 193 Mo. 547. (2) The petition fails to show that the defendants or any of them are solvent or that the plaintiffs' claim has been reduced to judgment, or that the plaintiff will suffer any loss if defendants are not restrained. In other words the petition does not show that plaintiff has no full and adequate remedy at law. Humphreys v. Milling Co., 98 Mo. 542; Benton County v. Morgan, 163 Mo. 661; Shickle v Watts, 94 Mo. 419; Davidson v. Dockery, 179 Mo 694; McKee v. Allen, 204 Mo. 674; Grocer Co. v Clark, Exrx., 79 Mo.App. 405. (3) That the petition on its face shows that the plaintiff has estopped himself from pursuing another course. Bank v. Graham, 74 Mo.App. 256; Cobb v. Houston, 117 Mo.App. 645; Stone v. Cook, 179 Mo. 545; Fox v. Windes, 127 Mo. 502; Long v. Long, 111 Mo. 16; Smoot v. Judd, 184 Mo. 508; Nalle v. Parks, 173 Mo. 616; Nanson v. Jacob, 93 Mo. 331; Brewing Co. v. Miller, 124 Mo.App. 393; Com. Co. v. Railroad, 126 Mo. 344. (4) That the court erred in permitting plaintiff's attorneys to ask, and plaintiff to answer, certain questions. Eddy v. Baldwin, 32 Mo. 369; Green v. Gallagher, 35 Mo. 326; State ex rel. v. Roberts, 62 Mo. 388; McGuire v. De Trese, 77 Mo.App. 683. That the court erred in refusing defendant's instruction by way of demurrer to the evidence. Brewing Co. v. Miller, 124 Mo.App. 393.
Oliver & Oliver for respondent.
(1) The judgment, although interlocutory, was clearly for the right party. It was intended to hold the funds that these appellants expected to receive from said Mercantile Company in abeyance until after the Supreme Court should have definitely determined whether respondent could recover from the assignee or not. Kalbach v. Mathis, 104 Mo.App. 300; Graham v. Womack, 82 Mo.App. 618; Hansen v. Neal, 215 Mo. 256; Secs. 3630 and 3639, R. S. Mo. 1899. (2) It is not essential to show that the Mathewsons were insolvent in order to have conferred jurisdiction upon the court in a case of this kind; therefore, no reversible error was committed by the court in permitting counsel for the respondent to show that Mathewson had no other property out of which respondent could make this debt. The respondent had the right to follow this fund and to hold it in court until after the decision of the Supreme Court and that was all that was done. Stark v. Kirkley, 129 Mo.App. 353; Hanson v. Neal, 215 Mo. 271. (3) This is strictly a proceeding in equity and instructions and declarations of law have no place in proceedings of this kind. Heffernan v. Weir, 99 Mo.App. 301; Hunter v. Miller, 36 Mo. 143; Hudson v. Wright, 204 Mo. 412. (4) A demurrer to the evidence admits as true every fact which the testimony in behalf of the plaintiff tends to prove and every inference which may reasonably be drawn therefrom. Hach v. Railroad, 208 Mo. 581; Pitthan v. Schaithman, 127 Mo.App. 29. (5) The judgment being for the right party this court will not reverse it unless material and prejudicial error was committed by the trial court and against the rights of appellants. Not a penny has been taken from them by this decree. Its legal effect was and is to hold the allowances made by the assignee to these appellants in their present condition until the final determination of the case in the Supreme Court. If this is affirmed the trial court will then determine "what part, if any, of said allowances shall be applied to the payments of plaintiff's claim against these defendants." This is all that was sought to be done and it is all that the trial court granted, and its finding should not be disturbed. Sec. 865, R. S. Mo. 1899; Bassett v. Glover, 31 Mo.App. 150; Walker Bros. v. Railroad, 68 Mo.App. 465.
This action is in the nature of a suit in equity and the purpose is to restrain the defendants, A. G. Mathewson and Mabel Mathewson Howlett, from collecting certain allowances made in their favor by W. H. Garanflo, as general assignee for the benefit of creditors of the Mathewson Mercantile Company, and from selling or transferring said allowances until after the Supreme Court of the state shall determine an appeal pending in said court, wherein the present plaintiff is plaintiff and said assignee, Garanflo, is defendant, and wherein the plaintiff seeks to subject the funds of the Mathewson Mercantile Company in the hands of said assignee, to the payment of certain notes held by plaintiff against said Mercantile Company. The facts shown by the evidence and found by the court are these: In February, 1902, the Mathewson Mercantile Company, a corporation, executed and delivered to plaintiff three promissory notes, one for $ 1700 due on demand, one for $ 5000, due two years after its date, and one for $ 5000, due three years after its date, drawing interest at the rate of eight per cent per annum, compounded if not paid annually. On the $ 1700 note, three payments, amounting to $ 654.30 were made at different times; and on the second of the $ 5000 notes, three payments amounting to $ 1220 were made. The $ 1700 note was executed by the Mercantile Company to plaintiff for money he had lent it and the other two notes were executed in the name of the Mercantile Company by defendant A. G. Mathewson and Mabel Mathewson (afterwards Mabel Howlett) to pay plaintiff for one hundred shares of the capital stock of said company, which he assigned and transferred to the two defendants A. G. and Mabel Mathewson. Plaintiff had paid $ 10,000 in cash into the Mercantile Company in payment for said shares of stock. When the two defendants bought plaintiff's shares, they became and continued to be the sole owners of all the stock of the company, and being owners of it, executed the notes to plaintiff, and at the same time executed, in the name of the Mathewson Mercantile Company, a deed of trust to E. C. Phillips on real estate belonging to the Mercantile Company. Later, in June, 1905, the Mercantile Company having fallen behind in the payment of its obligations, executed an assignment of all its assets to W. H. Garanflo, as assignee for its creditors. Said assignee thereafter allowed the three notes previously made to plaintiff in the name of the Mercantile Company as a demand against its assets. Thereupon an agreement was made between plaintiff and the other creditors of the Mercantile Company by which the assignee was allowed to sell the property which had been conveyed to Phillips as trustee for plaintiff, upon the understanding and agreement that plaintiff would be permitted to apply to the assignee and the court administering the estate, for an order permitting plaintiff to claim, as a secured and preferred creditor, so much of the proceeds of the real estate as would discharge the notes he held which were secured by the deed of trust constituting a first lien on said real estate. Pursuant to this agreement Garanflo, as assignee, sold the real estate, making the announcement at the time of the sale that plaintiff would look to the proceeds for satisfaction of his lien instead of the property itself. Thereafter plaintiff filed an action to recover from the assignee enough of the proceeds of the assigned estate to discharge his notes, but other creditors resisted the...
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