In re Liquidation of Brinkerhoff-Faris Trust & Savs.
| Decision Date | 10 March 1947 |
| Docket Number | No. 39911.,39911. |
| Citation | 201 S.W.2d 274 |
| Parties | In the Matter of The BRINKERHOFF-FARIS TRUST AND SAVINGS COMPANY: S.E. WINCHELL, H.F. FINKS, G.C. LINGLE and PAUL McGEEHAN, Movants, Appellants, v. I.E. GASKILL, W.W. JOHNSTON and M.E. MORRIS, Commissioner of Finance of the State of Missouri. |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court. — Hon. Dewcy P. Thatch, Judge.
AFFIRMED.
Ralph P. Johnson, Crouch, Crouch & Kimberlin, Cowgill & Popham and Sam Mandell for appellants.
(1) After the Hon. W.L.P. Burney, regular judge of the Circuit Court of Henry County, disqualified himself to sit in the liquidation proceedings because of his interest as a depositor, his appointment of the Hon. Leslie A. Bruce, Judge of the 17th Judicial Circuit, to sit as special judge to hear all matters touching upon the liquidation proceedings was without warrant of law and conferred no jurisdiction on Judge Bruce. State ex rel. Dunlap v. Higbee, 328 Mo. 1066, 43 S.W. (2d) 825; Gale v. Michie, 47 Mo. 326; Ladd v. Forsee, 163 Mo. 506, 63 S.W. 831; Bank v. Graham, 147 Mo. 250, 48 S.W. 910; State ex rel. Allen v. Trimble, 317 Mo. 751, 297 S.W. 378; Sec. 29, Art. 6, Constitution of 1875; Secs. 1059, 2104, 2105, R.S. 1939. (2) The order of October 29, 1938, by which the sale of the remaining assets of the bank to I.E. Gaskill was approved by the Hon. Leslie A. Bruce as special judge of the Henry County Circuit Court, was void and the sale thereunder was void because made without jurisdiction. United Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W. (2d) 762; Comer v. John Hancock Mut. Life Ins. Co., 80 Fed. (2d) 413; Sec. 7924, R.S. 1939. (3) The order of October 29, 1938, by which the sale of the remaining assets of the bank to Mr. Gaskill was approved by the Hon. Leslie A. Bruce as special judge of the Henry County Circuit Court, being void, it is open to attack at any time. Simplex Paper Corp. v. Standard Corrugated Box Co., 231 Mo. App. 764, 97 S.W. (2d) 862; Edmonds v. Scharff, 279 Mo. 78, 213 S.W. 823.
J.E. Taylor, Attorney General, and George W. Crowley, Assistant Attorney General, for respondent M.E. Morris, Commissioner of Finance; H.E. Sheppard, Elmer E. Hall and William G. Boatright for respondents I.E. Gaskill and W.W. Johnston.
(1) In Missouri where the regular circuit judge voluntarily disqualifies and appoints as special judge the regular judge of another circuit, such appointment, although irregular and not authorized by the applicable statutes, constitutes error only, does not affect the jurisdiction of the court, and cannot form the basis of a collateral attack. Little Tarkio Drainage Dist. v. Richardson, 227 Mo. 252, 126 S.W. 1021; State ex rel. v. Higbee, 328 Mo. 1066, 43 S.W. (2d) 825; State ex rel. v. Grayston, 349 Mo. 700, 613 S.W. (2d) 335. (2) In Missouri a special circuit judge is a judge de facto and unless a party in the very litigation pending before such special judge by timely objection challenges his authority, he is to all persons, except the state, a judge de jure. State ex rel v. Grayston, supra; State v. Miller, 111 Mo. 542 20 S.W. 243; Usher v. Western Union Tel. Co., 122 Mo. App. 98, 98 S.W. 84. (3) Consequently appellants' attack on the appointment of the special judge and on the validity of his orders, acts, and proceedings, based on his irregular appointment, not made in the proceeding in which the special judge was sitting and at the time of his appointment or at the time the matters now complained of were before such special judge for determination (appellants being present in person or by attorneys and urging the entry of the very order now complained of), constitutes an unwarranted collateral attack on the appointment of such special judge and on the validity of his orders, acts, and proceedings not permissible under any decisions or statutory authority in this state. See cases supra.
In these proceedings, instituted by motion in the Circuit Court of Henry County, appellants challenged the authority of Judge Leslie A. Bruce, then judge of the Seventeenth Judicial Circuit, which did not include Henry County, to preside as special judge in the Henry County Circuit Court throughout the liquidation of the Brinkerhoff-Faris Trust and Savings Company. The court below found the issues against appellants upon the merits of the motion attacking the authority of Judge Bruce to act as judge in the case, and appellants have appealed.
Appellants, who were petitioners and movants below, are the surviving officers and directors of the defunct Trust and Savings Company, which about February 6, 1933, pursuant to statutory authority, was taken over by the State Commissioner of Finance. W.W. Johnston was appointed Deputy Commissioner in charge of the liquidation of the bank. He remained in charge until about June 16, 1939, when his final report and settlement was approved by order of Judge Bruce entered in the Henry County Circuit Court, and he was discharged.
In February, 1933, when the Deputy Commissioner was placed in charge of the bank, and on March 30, 1933, Honorable W.L.P. Burney was the regular Judge of the Twenty-ninth Judicial Circuit, which included Henry County. On March 30, 1933 Judge Burney entered the following order in the Henry County Circuit Court calling Judge Bruce as such special judge:
"Thursday, March 30, 1933
In re:
Brinkerhoff-Faris Trust and Savings Company, W.W. Johnston, Special Deputy Finance Commissioner in charge of liquidation.
Now on this day Hon. W.L.P. Burney, Judge of the 29th Judicial Circuit, because of interest as a depositor in said institution voluntarily disqualifies himself to sit in said proceedings.
It is further ordered that the Hon. Leslie A. Bruce, Judge of the 17th Judicial Circuit be and hereby is called specially to sit and hear all matters touching upon said liquidation and in relation thereto.
W. L. P. Burney
Circuit Judge
In request of call made by Hon. W.L.P. Burney to Judge Leslie A. Bruce to act as special judge in this cause, Judge Leslie A. Bruce appears and consents to act as Judge and assumes all jurisdiction in this case.
Henry M. Adkins
Circuit Clerk."
Throughout all the proceedings in that cause, up to and including the final order of June 16, 1939, no attack or objection was made by anyone to the above set out order or to the authority or any order or decree of Judge Bruce as special judge of the court in that cause.
During the course of the liquidation proceedings in the Henry County Circuit Court, and on October 29, 1938, the parties appeared in court and Judge Bruce, as such special judge, approved a contract and ordered the sale of the remaining assets (including real estate) of the defunct bank to respondent Gaskill, who paid the balance due depositors and all remaining costs of liquidation, a total of about $48,000.00. Appellants knew that the order of sale of the remaining assets, which was made on October 29, 1938 was to be made on that day, and made no objection thereto, and further knew that the final order of June 16, 1939 was to be made, and made no objection thereto.
Thereafter, in the latter part of 1943, appellants instituted against respondent Gaskill, et al., an action in equity to set aside the order of sale made by Judge Bruce on October 29, 1938 on the ground that the same was obtained by fraud. After trial upon the merits below the chancellor dismissed the petition. That action reached this court upon appeal, was here affirmed, and is reported in 354 Mo. 593, 190 S.W. (2d) 266. The facts behind this controversy are there fully stated. The curious may read. The exact question which must be ruled on this appeal was raised in In re Collins Trust Estate, 354 Mo. 614, 190 S.W. (2d) 259, but the question of the authority of Judge Bruce to sit as special judge in the liquidation proceedings was not necessary to the disposition of that case, and was not there ruled.
About six years after the termination of the liquidation proceedings, about seven years after the...
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